Judge Strikes Down Kansas ‘Proof of Citizenship’ Voting Law

A federal trial court has ruled the practice an unconstitutional infringement on suffrage.


AP (“Judge: Kansas cannot require proof of citizenship to vote“):

A federal judge ruled Monday that Kansas cannot require documentary proof of U.S. citizenship to register to vote, finding such laws violate the constitutional right to vote in a ruling with national implications.

The ruling by U.S. District Judge Julie Robinson is the latest setback for Kansas Secretary of State Kris Kobach, who has championed such laws and led President Donald Trump’s now-defunct voter fraud commission. The 118-page decision came in two consolidated cases challenging a Kansas voter registration law requiring people to provide documents such as a birth certificate, U.S. passport or naturalization papers.

The decision strikes down the Kansas proof-of-citizenship registration law and makes permanent an earlier injunction that had temporarily blocked it.

In an extraordinary rebuke, the judge also ordered Kobach on Monday to complete an additional six hours of legal education on top of other requirements before he can renew his law license for the upcoming year. She imposed the sanction for his numerous disclosure violations.

Kobach said his office would appeal the judge’s “extreme conclusion,” which he said was unlikely to survive scrutiny by a higher court.

“Her conclusion is incorrect, and it is inconsistent with precedents of the U.S. Supreme Court,” Kobach said in a statement.

Kobach may well be right, although SCOTUS has been wildly inconsistent. A decade ago, in Crawford v. Marion County Election Board, they let stand an Indiana law requiring citizens to show photo identification to vote. But last year it let stand a 4th Circuit ruling that North Carolina’s restrictive voter ID law was unconstitutional. Earlier this term, they upheld Ohio’s purge of the voter rolls for citizens who failed to vote in two elections after receiving a single notice.

But, certainly, Kansas is pushing the envelope here:

No other state has been as aggressive as Kansas in imposing proof-of-citizenship voter registration requirements. Alabama and Georgia have proof-of-citizenship laws that are not currently being enforced, according to the American Civil Liberties Union. Arizona is the only other state with a similar law in effect, but that law is far more lenient and allows people to satisfy it by writing their driver’s license number on the voter registration form.

The lead case filed by the ACLU on behalf of several named voters and the League of Women Voters is centered on the National Voter Registration Act, commonly known as the Motor Voter Law, which allows people to register to vote when applying for a driver’s license. The case required Kobach to prove that Kansas has a significant problem with noncitizens registering to vote.

Robinson found the Kansas law disproportionately impacts qualified voters, while only nominally preventing noncitizen voter registration.

“It also may have the inadvertent effect of eroding, instead of maintaining confidence in the electoral system given the confusing, evolving, and inconsistent enforcement of (documentary proof of citizenship) laws since 2013,” she wrote.

Her ruling also encompassed a less publicized legal challenge filed by Kansas voter Parker Bednasek, which is not limited to motor-voter applicants cited in the ACLU and therefore affects all Kansas voters.

Kobach, a conservative Republican who is running for governor, was a leading source for Trump’s unsubstantiated claim that millions of immigrants in the country illegally may have voted in the 2016 election.

“This decision is a stinging rebuke of Kris Kobach, and the centerpiece of his voter suppression efforts: a show-me-your-papers law that has disenfranchised tens of thousands of Kansans,” Dale Ho, director of the ACLU’s Voting Rights Project, said in news release. “That law was based on a xenophobic lie that noncitizens are engaged in rampant election fraud.”

The cases have drawn national attention because of its implications for voting rights as Republicans pursue laws they say are aimed at preventing voter fraud but critics contend target Democratic-leaning minorities and college students who may not have such documentation.

“Kris Kobach’s mission to disenfranchise eligible Kansas voters has again been revealed as the unconstitutional crusade it has always been,” Kansas Democratic Party Executive Director Ethan Corson said in an emailed statement.

But the decision drew criticism from Steve Watkins, the Republican candidate for Kansas’ 2nd Congressional District, who called it “the latest example of unelected judges replacing their wisdom for that of voters.”

“There is nothing controversial about requiring United States citizens to show identification when they register to vote; it protects American citizen’s right to free and fair elections. Instead of mocking or playing politics with the integrity of our electoral process — the judiciary should be protecting it,” Watkins said.

Kansas has about 1.8 million registered voters. Kobach has told the court he has been able to document a total of 127 noncitizens who at least tried to register to vote. Forty-three of them were successful in registering, he says, and 11 have voted since 2000. Five of those people registered at motor vehicle offices, according to Kobach.

In the first three years after the Kansas law went into effect in 2013, about one in seven voter registration applications in Kansas were blocked for lack of proof of citizenship — with nearly half of them under the age of 30, according to court documents. Between 2013 and 2016, more than 35,000 Kansas residents were unable to register to vote.

Courts had temporarily blocked Kobach from fully enforcing the Kansas law, with the 10th U.S. Circuit Court of Appeals in Denver calling it “a mass denial of a fundamental constitutional right.”

The Republican counter-argument—that having to demonstrate citizenship to engage in a right reserved to citizens—seems reasonable enough on its face. We have to show a photo ID for routine activity these days and, pursuant to the REAL ID Act of 2005, most state drivers’ licenses now require showing of passports and similar documentation before issuance. So most state-issued photo ID is effectively proof of citizenship these days. And Kansas is compliant with REAL ID.

But REAL ID, an over-reaction to the 9/11 attacks, was designed to ensure security before “accessing Federal facilities, entering nuclear power plants, and, boarding federally regulated commercial aircraft.” And even it specifically stated “The Act’s prohibitions do not affect other uses of driver’s licenses or identification cards – including licenses and cards from noncompliant states – unrelated to official purposes as defined in the Act. For example, the Act does not apply to voting, registering to vote, or for applying for or receiving Federal benefits.”

Further, Kobach’s own statistics would seem to bolster Judge Robinson’s ruling. He’s only able to point to 11 non-citizens voting over a span of 18 years—0.6 per year on average—and a measly 127 who have even attempted to register. Against that menace, “more than 35,000” residents were denied the fundamental right to register. That’s a massive harm to correct an insignificant problem.

While it wasn’t the issue litigated here, it’s hard to deny the charge that voter suppression was indeed the intent here, not an accident. Not only is it part of a nation-wide pattern but, again, the prevention of maybe one illegal vote per election cycle hardly seems worth the massive resources expended in passing, enforcing, and now defending the law.

FILED UNDER: Law and the Courts, US Politics, Voter Suppression
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kobach botched this case from the start.

    Not only did his defense of applicable Kansas law fly in the face of Federal law and the Constitution, but in choosing to represent his office himself rather than relying on the Attorney General or hiring outside counsel he basically violated that old adage about the man who chooses to represent himself in court has a fool for a client.

    One result of that was the fact that he routinely dragged his feet on discovery issues and failed to make disclosures required by the Federal Rules of Civil Procedure and the Local Rules of the District Court. As a result, there is a section of the ruling where the Judge rakes him over the coals for his mismanagement of the case and sua sponte imposes sanctions against him for his actions. He’ll be required to certify to the Court by June 30th of next year that he has taken 6 hours of CLE classes on Civil Procedure and the rules of evidence in addition to whatever is required by the Kansas State Bar.

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  2. OzarkHillbilly says:

    @Doug Mataconis: I can’t wait for the pictures of him sitting in the corner of the classroom wearing a “DUNCE” cap.

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  3. Tony W says:

    Whenever I read about these laws I ask myself “what problem are we trying to solve here?” The knee-jerk response is always “voter fraud”.

    We all know there is essentially zero voter fraud in this country from non-citizens voting. If we cared about voter fraud we’d go after people with two homes voting in both jurisdictions, or recent interstate movers doing the same thing.

    This is yet another case of Republican lawmakers inventing a problem so that they can go solve it and appear to be tough, while really just working to ensure continued power. We see it with guns and immigration and religion and tax rates.

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  4. Pylon says:

    That’s about the worst rebuke from the bench I’ve ever seen. I’ve seen lawyers admonished (fairly and unfairly) and hit with costs. I’ve never seen one ordered to take further classes. Couldn’t happen to a nicer guy.

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  5. @OzarkHillbilly:

    Before that there is the greater concern that he is currently running for the GOP nomination for Governor. His chief opponent is the state’s current Governor Jeff Colyer, who took over as Governor when Sam Brownback was named Ambassador-At-Large For Religious Freedom.

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  6. HarvardLaw92 says:

    @Pylon:

    Agreed. In my entire career, I’ve never seen a judge blatantly say “you’re too stupid to be a lawyer. Go back to school”.

    It warms the soul 🙂

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  7. OzarkHillbilly says:

    @Doug Mataconis: It’s Kansas Doug. SSDD. What do you expect?

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  8. Hal_10000 says:

    I’ll just re-iterate my position: ID should be required to vote; it should come with reforms that make it way easier to get ID. I don’t mean, “you can drive to some DMV six hours away that’s open between 8 and 9 am alternate tuesdays beware of the leopard”. I mean establishing an agency whose purpose is to go out, knock on doors and get IDs for people who don’t have one. The benefit of such an effort would go well beyond voting to being able to get jobs and drive and so on. There are a lot of people who don’t have ID (or the requirements for it) for various reasons — especially poor minorities whose records were not preserved by states. Let’s address that problem too.

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  9. mattbernius says:

    @Hal_10000:
    100% to both sides.

    Implementing the first without implementing the other (not to mention justifying it by shaming people who are unable to get ID under the current “you can drive to some DMV six hours away that’s open between 8 and 9 am alternate tuesdays beware of the leopard” system) is undemocratic.

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  10. OzarkHillbilly says:

    @Hal_10000: I find the case for voter ID to be some what short of convincing. That said, if we were to have it than the way you propose it’s implementation is the only way to do it. Now, getting us to pay for all that…

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  11. gVOR08 says:

    @Hal_10000:

    I mean establishing an agency whose purpose is to go out, knock on doors and get IDs for people who don’t have one.

    OK. Good idea. Now what on earth would motivate a Republican state government to do that?

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  12. Kathy says:

    @Hal_10000:

    I mean establishing an agency whose purpose is to go out, knock on doors and get IDs for people who don’t have one.

    This was done in Mexico to get people registered to vote, along with an ID issued by the Federal Electoral Institute (since renamed the national Electoral Institute) back in the 90s.

    But it was only done once.

    Since then it can be quite a trek to get your voter ID, more so since it needs to be renewed after some years. I, for example, need to drive about 20 miles and pay a toll both ways. On the plus side, the ID is issued right there. I did it when I moved, and will have to do so again right after the elections to renew my card (it expires at the end of the year).

    Before I moved, I could get it done relatively near to where I used to live, so that wasn’t so much of a hassle if I, say, lost my card. It’s too local.

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  13. inhumans99 says:

    @Doug Mataconis:

    Not to make light of his attempt’s at voter suppression but I think he is more POed at the Judge less for her ruling than for the fact that she said hey dummy, go back to school and only then will I deem you worthy of again being able to set-foot in my courtroom. That has to sting.

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