By: Norma Volkmer

Kansas Secretary of State, Kris Kobach, narrowly avoided contempt charges in September 2016 which would have been the cherry on top for those in opposition to Kansas’s proof-of-citizenship requirement. The requirement, which requires anyone registering to vote in Kansas provide proof of citizenship via one of thirteen documents, was enacted under the Secure and Fair Elections Act of 2011, and was enforced beginning in 2013.

The law became the center of a national controversy in January 2016, when Brian Newby, executive director of the U.S. Election Assistance Commission, granted Kansas, Georgia, and Alabama the ability to alter the federal registration form to satisfy the state identification requirements (Georgia and Alabama have passed similar proof-of-citizenship requirements but have not yet enforced them).

This decision happened at roughly the same time that Shawnee County District Judge Franklin Theis held that Kobach and the state elections department could not enforce the two-tier voting system created by the 2013 law. Prior to that decision in Belenky v. Kobach, Kobach had decided that those who registered with the federal form (which did not require proof of citizenship but merely an affirmation) could only vote in federal elections. Therefore, to vote in state and local elections, a person registering in Kansas had to register with the state form and show proof of citizenship.

The two-tier system led to confusion in those registering, including occasions in which people registered to vote at the Department of Motor Vehicles only to be told later that they had in fact not fully registered. Judge Theis was having none of that, stating, “a person is either registered to vote or he or she is not. By current Kansas law, registration, hence the right to vote, is not tied to the method of registration.”

In the ensuing months, several courts have held that Kobach must count voters who did not provide proof of their citizenship when registering at the DMV, even for state and local elections. This included requiring Kansas to count the votes of those who did not follow that procedure for the March 2016 primary.

First, in February 2016, the ACLU, on behalf of individual Kansas voter Wayne Fish, along with several other Kansas citizens and the League of Women Voters, in the U.S. District Court in Kansas City, arguing that Kansas must add those who had registered to vote at the DMV but did not provide additional proof of citizenship to the voter rolls. Fish had registered to vote in 2014 when renewing his driver’s license. However, he was unable to vote in the next election, being informed by the County Clerk that his name was never added to the voter registration rolls because he failed to provide proof of citizenship.

In May, U.S. District Judge Julie Robinson held that the requirement violated a provision in the 1993 National Voting Rights Act, writing that the states may only require the “minimum amount of information necessary” to determine if someone is eligible to register to vote. She also ordered Kobach to re-register the approximately 18,000 to 19,500 voters who failed to show proof of citizenship when registering at DMVs.

Plaintiffs appealed the case to the Tenth Circuit Court of Appeals and the Court heard oral arguments in August 2016.

It was Kobach’s failure to follow Judge Robinson’s May order to add voters who registered at DMVs to the registration rolls that led to possible contempt charges. A last minute deal between Kobach and the ACLU stopped the contempt proceedings at the end of September. Part of that deal required Kobach send notices to the voters in question, assuring them that they can vote in the November election for federal, state, and local candidates.

While Fish v. Kobach has been winding its way through federal court, the ACLU also filed suit (Brown v. Kobach) in the Third Judicial District, Shawnee County District Court, arguing that Kansas officials violated state law by implementing the dual registration scheme which prohibited some voters from voting in state and local elections. Judge Larry Hendricks held in July that the 17,500 voters who registered at the DMV had to be allowed to vote in the state primaries in August whether or not they had shown proof of citizenship.

Additionally, the Brennan Center, Stroock & Stroock & Lavan LLP, and Kirkland & Ellis LLP filed suit on behalf of the League of Women Voters and state affiliates against Brian Newby (League of Women Voters v. Newby) in U.S. District Court for the District of Columbia arguing that Newby lacked that authority to allow the secretaries of state of Kansas, Alabama, and Georgia to alter the federal form to require proof of citizenship.

The district court held that the states could implement the proof-of-citizenship requirement for the 2016 election. The League of Women Voters appealed. On September 26, 2016, the U.S. Court of Appeals disagreed. It held in a 2-1 opinion that Newby had acted unilaterally, without the vote of the four-member panel, and without determining if the request was necessary for the enforcement of voter qualification rules. The majority also noted that the League of Women Voters will likely win at trial.

U.S. Appeals Court Judge A. Raymond Randolph dissented, stating, “It is the States, and the States alone, who have the authority and the power to determine the eligibility of those who wish to vote in federal elections.”

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