A small group of state officials approved a new rule Tuesday that will enable 17,000 Kansans to vote in federal elections but not in state and local races.
The policy change is meant to comply with a recent federal court order by ensuring that people who registered at Department of Motor Vehicles offices but did not provide proof of citizenship are allowed to vote in federal elections this year.
These voters will receive the same ballot as everyone else, but local election officials will be instructed not to count their votes for state and local races unless they provide proof of citizenship. The ballots will be considered provisional.
Opponents say this creates a tiered voting system and question its legality. But Bryan Caskey, state director of elections, said the state will continue to enforce its proof-of-citizenship requirement while it appeals the federal ruling.
“That law is still in effect, so they are not considered registered voters under the laws of the state of Kansas,” Caskey said. “They are allowed to vote for federal office and federal office only due to the injunction granted by Judge Robinson.”
The federal ruling was based on the 1993 federal “motor-voter” law, which allows people to register to vote when getting their driver’s licenses.
Confusion at polls?
Critics of the policy, which was crafted by Secretary of State Kris Kobach’s office, warn that it will lead to overwhelming confusion when people show up at the polls in August and November.
People who have provided proof of citizenship will be able to vote in all elections. People who registered through a DMV but did not provide proof of citizenship will be allowed to vote in federal races. Suspended voters who tried to register by some other means will still be barred from voting in all races.
“Voters will come to the polls not knowing if they can vote,” said Mark Johnson, an attorney representing suspended voters in the federal lawsuit. “If they vote, they’re not going to know who they’re going to be voting for. If they find out later that their votes didn’t count, it’s certainly going to undermine the credibility of the election process.”
Johnson said the policy violates the ruling by a Shawnee County judge earlier this year that Kobach lacks the authority to create a tiered voting system. He said he and his colleagues are discussing whether to challenge it in court.
“Regardless of whether or not this is legal, it sounds like a recipe for confusion,” said Rick Hasen, a national election law expert at the University of California, Irvine School of Law.
“And it sounds like people may be inadvertently disenfranchised … because of confusion as to how these rules will be implemented at the level of the polling place,” Hasen said in a phone call. “Any time you are giving people a ballot with choices that they’re not allowed to vote on, you’re going to create uncertainty.”
He questioned whether most volunteer poll workers will be able to explain the nuances of the policy to the voters on Election Day.
The only other state with a similar system is Arizona, according to Johnathan Brater, counsel for the New York-based Brennan Center for Justice, which tracks voting laws nationwide.
The policy was approved by the five-member State Rules and Regulations Board on a 4-0 vote before 9 a.m. Tuesday, a few minutes after it had been posted online by the secretary of state’s office and before the public had an opportunity to comment.
Sen. Vicki Schmidt, R-Topeka, the board member who abstained from the vote, criticized the secretary of state’s office for waiting to present the policy until the last day for the state to comply with the federal ruling before the primary.
“Why is it an emergency now?” Schmidt asked. She said the office could have brought the proposal before the entire Legislature during its ceremonial last day on June 1 or during the special session at the end of the month.
Caskey said the office waited because it was appealing the decision. But that explanation rang hollow to Rep. Jim Ward, D-Wichita, who drove to Topeka to observe the meeting.
“Do not do it in this small (room), where the only thing missing is smoke because we have anti-smoking laws,” Ward said.
The board is made up of two members of the majority party of the Legislature and one representative each from the secretary of state’s office, the state department of administration and the attorney general’s office.
Ward said the Republican-only committee was trying to block these voters from state elections to help preserve Republican seats in the Legislature. He called for the DMV registrants to be allowed to vote in all elections this fall.
Kobach, who is in Cleveland for the drafting of the Republican Party’s national platform, was not at the meeting and did not immediately return a phone call Tuesday.
Bryan Brown, an attorney for the secretary of state’s office, said keeping the proof-of-citizenship requirement intact as the state mounts its federal appeal is in accordance with the will of the Legislature, which originally approved it.
“Just as we are presumed innocent when charged with a crime, this statute is presumed constitutional as it goes through the appeals process,” Brown said.