Kobach lost but voting hurdles remain

When the U.S. Supreme Court opted Monday not to decide whether the federal voter-registration form must account for Kansas and Arizona laws requiring proof of citizenship, it was another major legal defeat for Kansas Secretary of State Kris Kobach. Too bad the move, though welcome, won’t do much for voter participation in Kansas.

The 10th U.S. Circuit Court of Appeals had ruled last November that the U.S. Election Assistance Commission need not require would-be Kansas and Arizona voters using the federal registration form to provide proof of U.S. citizenship, as per the two states’ laws. The federal form only asks applicants to swear they are citizens. Ruling that the states “have not provided substantial evidence of noncitizens registering to vote using the federal form,” the appeals court had overturned a decision by Wichita-based U.S. District Court Judge Eric Melgren siding with Kansas and Arizona.

The Brennan Center for Justice at New York University School of Law called the high court’s decision not to take the case “a critical victory to strengthen the right to vote in federal elections in Arizona and Kansas” that reaffirmed the “important role Congress plays in preserving a fair voter registration process across the country.” As Rick Hasen’s Election Law Blog put it: “This is a huge win for those who want to see a greater federal role and uniformity in elections.”

Unfortunately, the Supreme Court’s rebuff of the states’ appeal means Kobach’s absurd two-tiered voting system will stand in Kansas. The admittedly few Kansans who use the federal form will be able to vote – but only for the federal offices of president, U.S. senator and representative, unless they comply with the state proof-of-citizenship requirement. Unable to take “no” for an answer, as usual, Kobach said Monday he will ask the U.S. Election Assistance Commission’s new members to consider changing the federal form.

The high court’s decision also leaves intact other legal means for Kobach to deter and discourage voting as part of his crusade against the nonexistent epidemic of voter fraud. About 30,000 Kansans, as of Monday, are on the list of voter registrations in limbo; they have tried to register, but state law now assumes they are illegal immigrants until they prove otherwise.

And as of Wednesday, Kobach even gets to prosecute election crimes himself, having worn down lawmakers until they needlessly gave him that power this spring. Kansans are about to find out what he meant recently when he said he’d identified more than 100 possible cases of double voting from last year’s elections.

So Kobach lost Monday – but so did the sensible notion that registering to vote in Kansas, whatever form you use, should entitle you to vote in every local, state and federal race. The surprise is not that the Supreme Court gave Kobach the brush-off, but that so many leaders from the governor on down think what’s happening to voter registration in the state is unobjectionable.

For the editorial board, Rhonda Holman

This story was originally published June 29, 2015 at 7:06 PM with the headline "Kobach lost but voting hurdles remain."