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Federal Appeals Court Says Kansas Can't Demand Proof Of Citizenship From Voters

Kris Kobach
Scott Canon
Kansas News Service
Kris Kobach

TOPEKA, Kansas — The Kansas law requiring people to prove they are U.S. citizens before registering to vote is unconstitutional, a federal court has ruled.

The decision handed down Wednesday by the 10th Circuit Court of Appeals panel means that no proof of citizenship is needed ahead of this year’s August primary and November general elections.

It stymies an effort by the state to reinstate the law, which a lower court overturned in 2016 in response to a challenge filed by the American Civil Liberties Union. Kansas can choose to appeal or ask for an en banc ruling.

“This decision safeguarding the rights of over 30,000 Kansas voters — including our clients — to participate in the 2020 upcoming elections free from unconstitutional burdens is a victory for democracy in Kansas,” ACLU of Kansas Executive Director Nadine Johnson.

Kansas lawmakers passed the proof-of-citizenship law in 2013 at the urging of former Kansas Secretary of State Kris Kobach, who at the time was building a national reputation for his efforts to combat what he claimed was pervasive voter fraud.

Later, as the leader of President Donald Trump’s now-defunct voter fraud commission, Kobach repeated the president’s unsubstantiated claim that millions of undocumented immigrants illegally voted in the 2016 election.

The appeals court said in its ruling that voter fraud isn’t a significant problem in Kansas. Between 1999 and 2013, a total of 39 non-citizens living in Kansas registered to vote, mostly due to administrative mistakes. At the time, that was 0.002% of the state’s more than 1.76 million registered voters.

The panel also said that both Kobach and his successor, current Kansas Secretary of State Scott Schwab, “failed to show that a substantial number of non-citizens registered to vote.”

The relatively few cases of fraud, the justices said, don’t justify the burden the law imposed on the 31,089 voters who had their registration applications canceled or suspended between 2013 and 2016.

Schwab, a Republican elected in 2018, issued a one-sentence statement Wednesday, saying his office was “thoroughly reviewing” the ruling and conferring with Kansas Attorney General Derek Schmidt on “how to move forward.”

Schwab and Schmidt have two options: appeal to the U.S. Supreme Court or request an en banc ruling from all the justices on the 10th Circuit bench. Wednesday's ruling was issued by two members of a three-member panel that heard arguments in 2019 (the third has died).

Kobach, who is running for the GOP nomination for a U.S. Senate seat, didn’t immediately respond to a request for comment. But on Twitter, he wrote that the decision was "the essence of judicial activism," and that the U.S. Supreme Court would be "highly likely" to overturn the decision.

Dale Ho, director of the ACLU’s Voting Rights Project, urged Schwab to “turn the page on Kris Kobach’s sorry legacy of voter suppression” by not appealing the ruling.

Jim McLean is the senior correspondent for the Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. You can reach him on Twitter @jmcleanks or email jim (at) kcur (dot) org.

Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Copyright 2020 KCUR 89.3

Jim McLean is a political correspondent for the Kansas News Service, a collaboration between KMUW, KCUR, Kansas Public Radio and High Plains Public Radio.