When state lawmakers return to the Capitol this week for a rare September session, they’ll be busy trying to fix an unconstitutional murder-sentencing law, confirming a controversial judge and facing an insurgent effort to repeal proof-of-citizenship requirements for state voters.
The special session is scheduled to begin bright and early at 8 a.m. Tuesday.
The main reason for the special session, repairing the state’s Hard 50 murder sentencing law, appears by all indications to be a slam dunk; support seems solid among Republicans who dominate the Statehouse and in the much smaller Democratic caucus.
The Senate is also scheduled to hold confirmation hearings and votes on at least six of Gov. Sam Brownback’s appointees to courts, cabinet posts and other state offices, including appointment of his office lawyer to the Kansas Court of Appeals.
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For their part, the Democrats plan to make some noise over the proof-of-citizenship requirements in Kansas law that are similar to Arizona provisions recently struck down by the U.S. Supreme Court.
House and Senate leaders are aiming for a short session, lasting only two or three days.
But the same leaders projected this year’s regular session would be wrapped up in 80 days instead of the usual 90.
Bogged down in Republican infighting over the budget and taxes, the session ran 99 days and would have cracked an even 100 if lawmakers hadn’t counted the last two days – May 31 and June 1 – as a single day.
Here’s the viewer’s guide to the special session:
The Hard 50
The main reason legislators will be in Topeka is to fix this sentencing law.
It sets a mandatory sentence of life in prison without possibility of parole for 50 years if a murderer is found to have committed the crime in a particularly heinous manner, but it doesn’t meet the criteria for a death sentence.
Dennis Rader, the BTK serial killer, and Scott Roeder, who murdered abortion provider George Tiller, are two of the more notorious recipients of the Hard 50 in recent years.
Acts that can trigger a Hard 50 sentence include prior convictions for violent crimes, killing for hire, torturing the victim, stalking the victim, shooting into a crowd or desecrating the victim’s body.
The law has been in use since 1994, but in June, the U.S. Supreme Court struck down a nearly identical Virginia law.
That prompted Kansas Attorney General Derek Schmidt to request the special session to fix the law before more high-profile murderers come up for sentencing.
The problem is that the law allows judges to decide whether a murder was committed in a manner that qualifies a defendant for the Hard 50. The Supreme Court ruled that’s a question of fact that has to be decided by a jury.
Last week, Schmidt sent the Legislature a bill to bring the state’s Hard 50 law into compliance with the Supreme Court ruling.
House Judiciary Committee Chairman Lance Kinzer, R-Olathe, has already offered some amendments.
Assuming the bill gets through committee without major changes, it’s expected to sail though both chambers since neither Republicans nor Democrats want to be seen as being soft on crime.
One spot where the special session could get dicey is over the state law requiring that prospective voters present document proof of citizenship when they register to vote.
In June, the Supreme Court struck down a similar Arizona statute, saying that requiring proof of citizenship to register conflicts with a superseding federal law, the Motor Voter Act. Motor Voter requires that registrants sign a sworn statement that they are citizens under penalty of perjury, but doesn’t require that they bring documents to prove their eligibility.
Secretary of State Kris Kobach has said the Kansas law is different enough from Arizona law that he does not think that the Supreme Court ruling affects its constitutionality.
Many Kansans confuse the proof-of-citizenship requirement with a companion provision that requires voters to show state-issued photo ID at the polls.
Although they’re part of the same state law, they aren’t the same thing. A driver’s license is generally not sufficient proof of citizenship and most new voters have to provide either their birth certificate or passport.
Those who can’t are put on the voter rolls but their actual voting privileges are suspended until they produce the documents.
That’s led to a backlog of about 15,000 people who have registered but can’t vote.
Democrats have hammered Republicans on the issue for months, contending that it’s aimed at suppressing registration by traditional Democratic blocs such as the poor, the elderly and racial minorities.
But about 57 percent of the voters currently in suspense are independents, 23 percent are Republicans and 18 percent are Democrats.
Republican Senate President Susan Wagle wants to defer any discussion on the issue until the next regular session in January.
Two Democratic legislators, Rep. Jim Ward and Sen. Oletha Faust-Goudeau, have vowed to force a floor fight on the matter during the special session.
They’ve cued up a bill to bring state law into compliance with federal requirements and say if the Republicans who dominate the committee system block the measure, they’ll propose it as an amendment when the Hard 50 bill is debated.
In order for amendments to be voted on, they have to be ruled “germane” to the original legislation under consideration.
Ward, a lawyer, is already building a case that an amendment would be germane to the Hard 50 law. He said they both deal with criminal sentencing because it’s a criminal offense to falsely swear that you’re a citizen.
The Senate will consider at least six appointees, but the most notable is Brownback’s choice for a new seat on the Court of Appeals, Caleb Stegall, the governor’s chief legal counsel.
Stegall is the first judicial appointment made by the governor since the Legislature changed the way that judges are selected for the appellate court.
Earlier this year, lawmakers dumped the so-called merit selection process for nominating appeals judges, in which a panel of lawyers chosen by state bar association members and non-lawyers selected by the governor would narrow the list to three names and the governor would make the final appointment.
Under the new law, the governor can choose whomever he wants to appoint, with Senate confirmation.
Brownback and the Senate mostly share the same conservative views regarding the judiciary, so it is highly likely that Stegall will win the Senate vote.
But it won’t come without a challenge from Democrats who complain the new system is political patronage and an attempt by conservatives to pack the courts with judges who will be more favorable to Brownback’s agenda.
Brownback fueled the Democrats’ ire by appointing his own lawyer and refusing to release the list of others who applied for the appeals court position.
Hearings on Stegall’s nomination will be handled by the Senate Judiciary Committee.
At least five other Brownback appointments will be considered by the Senate Confirmation Oversight Committee before going to a floor vote:
• James Clark, a former vice president of Westar Energy and Kansas Gas Service, to secretary of administration, a cabinet post.
• Joshua Ney, a former prosecutor, to state securities commissioner, a post he now holds on an interim basis.
• Ronald Mason, a tax lawyer, to judge at Court of Tax Appeals.
• Col. Robert Windham, to brigadier general, Kansas National Guard.
• Elizabeth King to seat No. 16 on the University of Kansas Hospital Authority.
Brownback released a lengthy list of appointees to a variety of posts on Friday. It could not be immediately determined if any of those appointments will also be considered by the Senate during the special session.
Proponents of the anti-abortion “heartbeat bill” had initially hoped to have it voted on during the special session, but now that appears extremely unlikely.
Mark Gietzen, a longtime anti-abortion activisit who leads the Wichita-based Kansas Coalition for Life, said he won’t push for a vote during the special session because he’s not sure he has the overall support to move the bill through.
Gietzen spent the waning days of this year’s regular session collecting lawmakers’ signatures in support of the bill, which would essentially ban most abortions after the beginning of a fetal heartbeat, usually about five to six weeks into a pregnancy.
He said he has gathered the signatures of slightly more than half the members of the House and Senate, but not enough to assure passage without support or at least a statement of neutrality from Kansans for Life, a much larger anti-abortion group.
Kansans for Life has thus far concentrated its efforts on bills designed to essentially regulate abortion out of existence in the state, while seeking to avoid actions that would put Kansas on a collision course with Roe v. Wade, the U.S. Supreme Court decision that established a constitutional right to abortion.
Gietzen now said it is more likely that he’ll press for the heartbeat bill in January.