Sarah Pitts and Andrew Clark
TOPEKA, Kan. – For years, Kris Kobach has fought against illegal immigration. He helped write two of the nation’s most strict immigration laws in Arizona and Alabama and helped develop a now-defunct national immigration security system.
Now Kobach, the Republican secretary of state for Kansas, is embroiled in court fights over his repeated attempts to require Kansans to provide proof of citizenship to register to vote. Although he has repeatedly lost in court, one case that remains open will determine whether thousands of Kansans will be able to vote in November’s local and state elections.
Kris Kobach versus voters: A timeline
The saga began in 2011 when Kansas passed the Secure and Fair Elections Act. The law, written by Kobach, requires those registering to vote after Jan. 1, 2013, to provide documentary proof of U.S. citizenship, such as a birth certificate or a passport. Kansas is the only state trying to enforce a proof of citizenship requirement for voter registration, although Kobach wants the rest of the country to follow.
“The (SAFE Act) has been a model for other states,” he told News21. “The idea of proving citizenship has been around for a while, it’s been needed for a while, and the people of Kansas support it.”
The act also required voters registering after Jan. 1, 2012, to submit photo identification when registering to vote and to show a photo ID when voting in person. While photo ID laws have been overturned in some states as discriminatory, challenges to the Kansas law have been more focused on its proof of citizenship requirement.
Voting rights advocacy groups who have fought Kansas’ citizenship requirement argue that it would be too much of a burden for people who don’t have access to the necessary documents. Kobach says the law was intended to prevent voter fraud, including by non-U.S. citizens.
But Kobach denies any connection between his concern about illegal immigration and his apprehension about voter fraud.
“That’s been widely misreported in the press,” he told News21. “Reporters say ‘Oh, Kobach deals on this topic with illegal immigration, here he is talking about voting, he must be worried about illegal aliens voting.’ Actually, it’s more frequently the issue that people who are noncitizens who are legally here will vote.”
For Kansas’ Aug. 2 primary election, a state judge overruled Kobach and allowed people who registered to vote in person at a department of motor vehicles location without providing proof of citizenship to vote in local, state and federal elections. The judge will not decide until Sept. 21 whether these more than 17,000 Kansans will be able to vote in local and state elections in November.
Kobach: Voter fraud ‘amazingly frequent’
Altogether, since Kansas Gov. Sam Brownback gave Kobach the authority to prosecute voter fraud as secretary of state in July 2015, he has secured just four convictions. All four defendants were legal citizens of the U.S.
The SAFE Act does not have a provision to prevent double voting across state lines. However, Kobach told News21 that double voting is “amazingly frequent” across the country.
“The reality of the situation is that (the SAFE Act) is based largely on anecdotal evidence,” said Djuan Wash, the communications director for Sunflower Community Action, a Wichita-based advocacy organization.
But Clay Barker, the executive director of the Kansas GOP, said in an email that just because evidence of fraud is scarce doesn’t mean fraud doesn’t exist.
“It’s hard to know how often (voter fraud) occurs,” Barker said. “It’s one of those crimes where the idea is to never get caught, so no one ever knows it happened. That’s the idea. So if you do it right, no one will even realize it happened.”
Kansas law faces legal challenges
In September 2013, the ACLU sued Kobach, contending that the proof of citizenship requirement split Kansas voters into two “separate and unequal classes.” In June 2013, the U.S. Supreme Court ruled that states could not require proof of citizenship for people who register using the U.S. Election Assistance Commission’s national mail voter registration form. Kobach was allowing those who registered in Kansas with proof of citizenship to vote in all elections but prohibited those who registered with the EAC form – without proof of citizenship – from voting in state and local elections in Kansas.
This January, Shawnee County District Judge Franklin Theis ruled that Kobach doesn’t have the authority to ban those who register with the EAC form from voting in local and state elections.
Meanwhile, Brian Newby, the former Johnson County, Kansas, election commissioner under Kobach, was appointed executive director of the EAC in November 2015. On Jan. 29, he sent letters to the secretaries of state of Kansas, Georgia and Alabama allowing them to require proof of citizenship for those registering with the EAC form.
After Kobach received Newby’s letter, he asked Theis to reconsider his ruling. However, Theis stood by his decision.
Voters face struggles when registering
If a person attempts to register to vote in Kansas and doesn’t provide proof of citizenship, photo ID or fulfill other registration requirements, that person is placed on a “suspense list.” After being placed on the list, they have 90 days to finish their registration process. If their registrations aren’t completed after that time, they are purged from the list.
As of July 12, 26,228 people were on the Kansas suspense list, more than 1.5 percent of the state’s registered voters. More than half of the people on the list aren’t affiliated with a political party. More than 57 percent of the people on the list are also millennials, or people born between 1981 and 1998.
Critics of the proof of citizenship requirement say it disenfranchises more than it prevents voter fraud. But Bryan Griffin, a 48-year-old registered voter in Sedgwick County, Kansas, said he’s never had trouble with the state’s proof of citizenship requirement. He also said if a person is not responsible enough to carry a photo ID, then that person isn’t responsible enough to vote.
“I don’t even know why this is debated,” he said. “(I’ve) wondered why one did not have to have a form of ID to vote 20-some years before the subject was ever brought up by lawmakers.”
ACLU representative: System a ‘massive mess’
“Kansas has voting laws that are absolutely unique,” said Doug Bonney, the legal director of the ACLU Foundation of Kansas. “No other state has done what Kansas has done, and it has caused a massive mess.”
Yet Kobach told News21 he will continue to push for Kansas and other states to enforce proof of citizenship. “Kansas is doing a service to the rest of the country,” he said, “by not only implementing these laws, not only producing a model for other states to look at, but also fighting the legal battles that the people who dislike photo ID and dislike proof of citizenship, want to fight.”
(Editor’s note: Pamela Ortega also contributed to this report.)