Judge: 17,500 suspended voters can cast ballots in all races Tuesday | The Wichita Eagle

A Shawnee County judge has ruled that 17,500 voters can have their votes counted in state and local races as well as federal ones in Tuesday’s Kansas primary election.

“Losing one’s vote is an irreparable harm in my opinion,” Judge Larry Hendricks said in his bench ruling Friday.

A state board approved a rule earlier this month to allow people to vote only in federal elections – not state and local ones – if they registered at DMV offices but failed to provide proof of citizenship as required by Kansas law.

The rule, crafted by Secretary of State Kris Kobach, was meant to put the state in compliance with a recent ruling by a federal judge to let these voters vote under the federal “motor-voter” law.

Kobach contended that the federal ruling applied only to federal elections and that the state’s proof of citizenship requirement still barred these voters from casting votes in state and local races.

The American Civil Liberties Union challenged the rule under the equal protection clause in the Kansas Constitution.

“You’re either registered or you’re not,” ACLU attorney Sophia Lakin told the judge. “There’s no such thing as half registration.”

No dual voting system

Hendricks said Friday that Kobach lacks the authority to create a dual voting system. He issued a temporary order blocking the rule, ensuring that all of these voters’ votes will be counted.

Hendricks said the state does have an interest in preventing non-citizens from voting, but that those interests “do not outweigh the rights” of the “overwhelming number of U.S. citizens that will lose the constitutional right to vote” under Kobach’s rule.

Under the order, if one of these voters shows up at the polls Tuesday, he or she will receive a ballot just like any other voter and be able to vote in every race, from U.S. Senate to county sheriff.

“It’s everything we asked for,” said Mark Johnson, a board member of the ACLU’s Kansas chapter.

However, those voters won’t be added to the state’s list of fully registered voters while the case is pending, which is what the ACLU is seeking in the long term. Instead, their names will be on a separate list for the time being.

“I’d like to think that people are just going to see the same kind of process that they normally see,” Johnson said. “They go and they show ID, they say who I am, they’re handed the ballot and they vote. And there’s no special instructions. … Every time you have special instructions given out there’s going to be some sort of confusion.”

The court order applies only to the August primary. Hendricks set a Sept. 21 court date for an evidentiary hearing ahead of the November general election.

‘Non-citizens in our voter rolls’

Kobach warned that striking down the rule “will put non-citizens in our voter rolls. It’s a certainty.”

He said Sedgwick County had found 25 cases of non-citizens attempting to register to vote since 2013.

“I think it may be in the hundreds, the number of those 17,000 who are not U.S. citizens,” Kobach said after the ruling. “…What’s the real number in Sedgwick County? I don’t know. Is it 50? Is it 200? Is it 500? Then you multiply that times five.”

“That’s the problem and that’s why Kansas adopted this law. Once someone gets on our voter rolls there’s no way to magically pull off the non-citizens and take them off the rolls,” Kobach said. “The only way to effectively ensure that only citizens are voting is to have a screening process at the beginning.”

He rejected the judge’s contention that the overwhelming majority of people on the suspended list are citizens.

“We don’t know,” Kobach said. “We can guess and we can say, well, probably, maybe. It is entirely possible the majority are not citizens.”

Votes to be treated as ‘provisional’

In a news conference at the Historic Courthouse in Wichita on Friday evening, Sedgwick County Election Commissioner Tabitha Lehman said she plans to treat the ballots as provisional votes.

A voter who shows up at the polls, and whose name is on the list of voters eligible under the court order, will be given a paper ballot rather than voting on the electronic voting machines, she said.

The voter will seal his or her ballot in a provisional voting envelope.

Those ballots will be kept separate from the regular provisional ballots. After the election, Lehman said, she will recommend to the canvassing board that she be allowed to count all the votes to comply with the court order.

About 4,200 voters in Sedgwick County are affected, although it is unknown how many will actually come to vote, Lehman said.

No appeal planned

Despite his objections, Kobach will not appeal the order. He said there is not enough time before Tuesday to get a higher court to block it.

Hendricks chastised Kobach at one point for creating an emergency situation, noting that the federal ruling came in May and Kobach waited until the day before advance voting started to enact the rule earlier this month.

Kobach blamed this partly on the process, which required reviews by the Department of Administration and the attorney general’s office before the policy could be approved by a state board.

Contributing: Dion Lefler of The Eagle