Some experts say a federal appeals court decision overturning Texas’ voter identification law could open a new legal front to challenge Kansas requirements, but Kansas Secretary of State Kris Kobach says he thinks the voter ID law he wrote will stand up to court scrutiny.
Voting-rights organizations are projecting national implications from a decision handed down Wednesday by judges of the Fifth Circuit Court of Appeals in New Orleans. The judges ruled that Texas’ requirement for voters to show photo ID when casting a ballot has the effect of discriminating against minority voters in violation of Section 2 of the federal Voting Rights Act.
The judges sent the case back to a lower court for consideration of remedies to fix the discriminatory effect and possibly make further findings on whether Texas intended to infringe on minority voters’ rights when it passed its photo-ID law.
Like Texas, Kansas requires voters to present a government-issued photo ID to prove their identity when they vote at the polls. The Texas law is somewhat stricter in what documents can be used as photo ID, and Kobach said he thinks that difference will let Kansas law stand where Texas law fell.
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“The Texas law only has a very narrow range of accepted ID, in contrast with Kansas, where we have about a dozen,” Kobach said. In fact, he said, he expects the remedy for the Texas law “will probably look more like the Kansas law.”
Texas allows seven types of identification to be used for voting: driver’s license, passport, nondriver ID card, election ID certificate, citizenship certificates, military ID and concealed-carry gun licenses.
Kansas allows all those, Kobach said, except the election ID certificate, which Kansas doesn’t have. In addition, Kansas accepts college ID cards, tribal ID cards, government employee IDs and public-assistance cards if they have a photo, Kobach said.
He said evidence introduced in the Texas case showed that about 4 percent of prospective voters didn’t have a compliant photo ID. In Kansas, “Our estimate is the number of people (without acceptable photo ID) is minuscule, less than one-half of 1 percent,” Kobach said.
A study by University of Houston and Rice University researchers concluded that Texas’ photo ID law substantially suppressed turnout in a predominantly Hispanic congressional district they surveyed.
The survey found 12.8 percent of registered voters who didn’t vote in the 2014 election cited the photo ID requirement as one of the reasons. And 5.8 percent said it was their principal reason for not voting, the study said.
However, when the residents were quizzed about what identification cards they actually had, only 2.7 percent didn’t have at least one ID they could have used to vote.
“This study suggests that the most significant impact of the Texas voter photo ID law on voter participation … was to discourage turnout among registered voters who did indeed possess an approved form of photo ID, but through some combination of misunderstanding, doubt or lack of knowledge, believed that they did not possess the necessary photo identification,” the study report said.
Russell Fox, director of the political science department at Friends University, said he doesn’t see an immediate effect on Kansas from Wednesday’s court ruling. Kansas isn’t bound by Fifth Circuit appeals decisions because the state lies in the Denver-based 10th Circuit.
“However, it obviously gives some ammunition to the people who want to challenge Kobach’s law,” he said. While circuit courts are separate, they often refer back and forth to each other’s decisions, and the Fifth Circuit ruling creates “a pretty significant additional obstacle the people who want to defend these laws will have to get past.”
He said Kobach is probably right that the inclusion of more types of ID makes the photo-ID requirement in Kansas less burdensome for minorities than the Texas law.
“I find that a plausible argument legally, but constitutionally, it’s a pretty thin reed,” he said. He said he would advise someone who challenges the Kansas law to “make it about citizens’ rights and make it about voting rights, not about (racial) discrimination.”
Reach Dion Lefler at 316-268-6527 or firstname.lastname@example.org.