Michael A. Smith: Kobach now has more power to intimidate

I am a white male, but most Americans are not. For many, even everyday encounters with public authority – law enforcement, for example – can be terrifying. This makes me especially alarmed about a new law giving Kansas Secretary of State Kris Kobach the power to prosecute voter fraud.

The law, which was passed by the Legislature last month in the frenzy of last-minute legislation, is strange.

First, prosecution power is typically vested in federal authorities, state attorneys general, and local county prosecutors and district attorneys, not secretaries of state. Second, even Kobach himself cannot find voter fraud in Kansas.

For example, his office publicly named a Wichita voter who supposedly was deceased. But an Eagle reporter found the man raking leaves in his yard. Kobach’s office also scrutinized the voter rolls for duplicates: possibly voters registering and voting twice. He found a tiny number of the voters to be potentially suspicious. Later, Kobach claimed that U.S. Attorney Barry Grissom was ignoring his requests to prosecute voter fraud, but Grissom said Kobach had referred no such cases to him.

Given this law, Kobach’s track record of accusing innocent people of voter fraud becomes downright chilling.

The chilling effect is a term used in several U.S. Supreme Court rulings, referring to laws that may prevent legal activity from happening due to intimidation. For example, in the past, the court has intervened to protect reporters from prosecution. The justices did not want this fear to chill the constitutionally protected freedom of the press.

Kobach’s new law may have chilling effects on voting.

Certainly, voters are confused as are poll workers, many of whom receive little training when the laws change or relevant court rulings are issued. For example, a colleague of mine had to prove to skeptical Douglas County poll workers that his passport is an acceptable photo identification for a voter. If poll workers do not understand these laws, how can voters?

Under this new law, a voter facing legitimate confusion about identification, change of address, or polling place may fear prosecution for an innocent mistake – even if it is Kobach’s mistake.

Last year, Chapman Rackaway of Fort Hays State University, Kevin Anderson of Eastern Illinois University and I analyzed the tumultuous history of voting laws in the United States. Too often, laws purportedly designed to protect the integrity of the process have in fact been aimed at preventing certain people from voting. We also found that the proof-of-citizenship laws Kobach championed earlier, part of the so-called SAFE Act in Kansas and copied in several other states, link to lower voter turnout as a county’s poverty rate increases.

Registering and voting is a hassle, and not all elections are close enough to be swayed by just a few votes. Instead, we rely on civic duty and the satisfaction of doing one’s part in order to turn out voters. Such noble aspirations dissolve quickly in a climate of fear.

Kobach’s new law is not only unnecessary, it is dangerous.

This story was originally published July 23, 2015 at 7:05 PM with the headline "Michael A. Smith: Kobach now has more power to intimidate."