In Kansas, 90 Days to Prove Citizenship

Is 90 days enough time to comply with proof-of-citizenship voter registration requirements? In Kansas, at least 31,000 presumably qualified electors who have attempted to complete applications to register to vote will see their applications deleted under new administrative regulations in the state. Most of these applicants failed to submit proof of their U.S. citizenship, to a county election official satisfactory which is required by the 2011 Kansas Safe and Fair Elections Act (“S.A.F.E. Act”). Such suspended voters are generally unable to cast ballots in local, state, or federal elections; however, following the U.S. Supreme Court’s decision in Arizona v. Inter-Tribal Council of Arizona, Inc., under the National Voter Registration Act (“NVRA”), any Kansan who applies to register to vote using the federal voter registration form is allowed to vote in federal elections, even if he or she does not include proof-of-citizenship. In order to be removed from the list of suspended voters and be added to the state’s voter rolls, applicants must provide proof-of-citizenship to their local county election official. Under the previous system, county election officials worked feverishly to contact all applicants on the suspended list repeatedly in order to help them complete the proof-of-citizenship requirement. Some argue these unending attempts to encourage applicants to comply with registration requirements were too onerous.

On September 17, 2015, following a period of public comment, Kansas Secretary of State and noted voter proof-of-citizenship proponent Kris W. Kobach promulgated a new administrative rule to address this issue. K.A.R. § 7-23-15 requires county-level election officers to delete the applications of voters who attempted to register to vote using the state form but failed to complete the state’s voter registration requirements within 90 days of submitting an application. Under this new rule, an applicant’s failure to supply proper proof-of-citizenship as required by the state’s 2011 S.A.F.E. Act, as well as overlooking any other requirement, serve as grounds for deleting a voter registration application.

Just 13 days later, on September 30, 2015, plaintiffs Alder Cromwell and Cody Keener filed a complaint in the U.S. District Court for the District of Kansas in Kansas City, claiming their rights under the NVRA and the Fourteenth Amendment to the U.S. Constitution were violated. Among other things, Cromwell and Keener allege that, even though they are U.S. citizens and Kansas residents, the new 90-day rule in Kansas will cause their voter registrations to be canceled, depriving them of life, liberty, or property without due process of law and violating the provisions of the NVRA, which provides an additional protection of the fundamental right to vote. Cromwell applied to register to vote using a postal application, while Keener applied to register to vote when renewing his driver’s license. As expected, in his answer, Secretary Kobach, who, along with another staff attorney, is representing his office, denies the allegations in this suit. In popular media, Secretary Kobach has argued that any ballot access concerns are mooted because the 90-day requirement does not prevent unregistered electors from resubmitting an application to register to vote and including all necessary proof-of-citizenship documentation.

Following a state records search that uncovered proper proof-of-citizenship documents for both plaintiffs, the Kansas Secretary of State’s office registered both Cromwell and Keener to vote. On November, 14, 2015, Kobach filed a motion to dismiss, arguing that the plaintiffs did not have standing to bring the suit and that the court did not have subject matter jurisdiction because the plaintiffs were registered voters. The plaintiffs’ attorneys countered on November 17, 2015 by filing an amended complaint, seeking class action status on behalf of other persons who may be disenfranchised by K.A.R. § 7-23-15.

While Secretary Kobach argues this new administrative rule will ease the burden on local election officials, some of the county election officials affected by this rule change note that the process of removing applicants whose applications have been pending for longer than 90 days will actually take a considerable amount of time and effort. In a recent article, Sedgwick County Election Commissioner Tabitha Lehman, who is in charge of the state’s second-most populous county, said it would take her office an entire work week simply to determine which suspended applications would be affected by the new rule. Sedgwick County has spent $20,000 since 2013 trying to help applicants with suspended registrations complete the voter registration process.

Should the plaintiffs prevail, the new 90-day rule would likely be reversed, returning Kansas to a system in which it maintains suspended voter registration applications indefinitely, eagerly waiting for applicants to submit their paperwork as their busy lives permit.

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