Politics & Government

Kobach gets Supreme Court setback on voter citizenship law, vows to fight on

A poll worker at St. Andrew's Lutheran Church examines a voter's driver's license in 2012.
A poll worker at St. Andrew's Lutheran Church examines a voter's driver's license in 2012. File photo

In a case that could change the way Kansans can register to vote, the U.S. Supreme Court declined Monday to hear an appeal by Secretary of State Kris Kobach on the state’s proof-of-citizenship law.

Kobach said that decision was expected and doesn’t end his quest to require all prospective Kansas voters to show proof of citizenship– usually a birth certificate or passport – to register to vote in federal, state and local elections.

The executive director of the Kansas American Civil Liberties Union, Micah Kubic, said his group will continue to build a path around the state law so would-be voters can vote in every race by swearing to their citizenship, without bringing documents such as birth certificates that may not be immediately accessible.

The high court decision Monday let stand an appeals court ruling that federal officials don’t have to change their federal voter-registration cards to help enforce Kansas’ proof-of-citizenship law. Federal voter-registration cards, available online, allow a sworn statement to suffice as citizenship proof.

The decision in Washington is expected to revive a dormant court case in Topeka challenging Kobach’s policy of using a two-tier voter list to decide who can vote in which elections.

Kobach allows voters who register with the federal form but don’t provide citizenship documents to vote only for candidates in presidential and congressional races. Voters who register using the state form and provide citizenship papers can vote in federal elections and are the only ones allowed to vote in state and local races.

The changes have affected people who have registered to vote since January 2013.

Voters who use a state form to register and don’t provide citizenship documents can’t vote in any elections.

The ACLU has sued in a Topeka court alleging that system is unconstitutional.

If the Topeka court rules against Kobach, it would create a workaround that would essentially negate the state’s proof-of-citizenship law, which Kobach proposed and championed through the legislative process.

“We’re feeling good about what the Supreme Court decided to do and we think that it certainly helps our case and will help to strike down the dual-registration system,” Kubic said.

Kobach said he thinks he’s on solid legal ground with regard to the dual voting registration system.

“The federal (registration) form only purports to apply to federal elections,” Kobach said. “States can, if they wish, as a matter of courtesy, allow the federal form to register for state elections, but under Kansas law we don’t, because under Kansas law you have to provide proof of citizenship.”

The proof-of-citizenship law is separate from the related requirement that voters show state-issued photo identification at the polls.

While a driver’s license suffices as photo identification to vote on Election Day, proving citizenship requires a birth certificate, passport or other specialized documents.

Kobach said getting his appeal before the Supreme Court was a long shot, because the justices take only a small percentage of cases filed for their review. The odds are even slimmer when there isn’t a conflict between appellate courts, which there isn’t in this case.

He said the next step will be to go back to the federal Election Assistance Commission, which oversees the federal registration form. He will request, again, that it add Kansas-specific instructions on proof-of-citizenship to the federal form.

The first time Kansas made that request, the commission didn’t have any members to consider it because of Senate political gridlock blocking President Obama’s nominations to federal agencies.

The decision not to honor Kansas’ request was made by the commission’s acting executive director. In November, the 10th Circuit Court of Appeals in Denver ruled that the executive director was authorized to act for the agency in the absence of commissioners.

Kobach said he plans to file a modified request now that things are more settled at the commission.

“Now we’re going to work with this Election Assistance Commission to see if they can obey federal law and work with us so that the language on the federal form is appropriately modified,” he said.

Kubic said he doesn’t see that happening.

“He (Kobach) is certainly entitled to make any request he likes,” Kubic said. “I would be shocked if they supported his position on that.”

By law, the commission is made up of four members, two Republicans and two Democrats. Three votes are required to take substantial action. The commission has three of four members seated now.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

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