Kansas Secretary of State Kris Kobach is confident that the voting law he wrote for Kansas is constitutional.
Of course, he predicted that all the conservative-leaning members of the U.S. Supreme Court would support Arizona’s voter-registration law, which didn’t happen. And he said that the Arizona immigration law that he helped write would pass constitutional muster, but it didn’t. And he was certain that the courts would toss out instate tuition laws for immigrants, which also didn’t happen.
Kobach is wrong a lot. And he likely is wrong again.
The U.S. Supreme Court struck down Arizona’s law requiring proof of citizenship in order to register to vote. States must “accept and use” a standard federal form for voter registration, which doesn’t require proof of citizenship, the court ruled.
In a commentary he wrote this spring defending Arizona’s law, Kobach predicted a 5-4 vote, with Justice Anthony Kennedy providing the swing vote either for or against. But only two justices backed Arizona’s law, and conservative Antonin Scalia wrote the majority opinion.
Now Kobach is arguing that Kansas’ voting law is OK because state election officials are required to accept the federal voter registration form and add the voter to the registration rolls. However, that registration is put “in suspense” until the voter provides proof of citizenship. So while Kansas “accepts” the federal form, it doesn’t really “use” them.
That seems in clear conflict with Scalia’s opinion, which said: “Reading ‘accept’ merely to denote willing receipt seems out of place in the context of an official mandate to accept and use something for a given purpose. The implication of such a mandate is that its object is to be accepted as sufficient for the requirement it is meant to satisfy.”
Despite this ruling, Kobach intends to continue enforcing Kansas’ law. Apparently it will be up to the courts to block him – again.
Given how often Kobach is wrong, it’s amazing that other states and cities still hire him to draft laws and conduct training. Kevin Johnson, dean of the law school at the University of California-Davis, had the same reaction last month after a federal judge declared that an Arizona sheriff’s office, which paid Kobach $300 an hour to train its deputies, had been racially profiling.
“It seems to me that police departments across the country are on notice that maybe Kris Kobach is not the best person you want to put together a program that is going to withstand legal scrutiny,” Johnson said.
However, Kobach is right about one thing: A large protest last weekend in front of his home crossed the line. Though the protest may or may not have violated any laws – Kobach contends it did – it did seem aimed at intimidating him.
It’s understandable that the protesters are upset with Kobach’s work on immigration, but there are better ways to rebuke him.
Besides, the courts are taking care of that.
For the editorial board, Phillip Brownlee