A Bad Year for Kansas’s Kobach and Newby

By: Norma Volkmer

It has not been a good year for Kansas Secretary of State Kris Kobach and former Johnson County, Kansas Election Commissioner Brian Newby. Newby is currently the executive director of the U.S. Elections Assistance Commission, where in January he approved Kobach’s plan to alter the federal voter registration form to require proof of citizenship.

In 2013, Kansas passed the Secure and Fair Elections (SAFE) Act that included a provision requiring those registering to vote at DMVs show proof of citizenship with one of several documents. However, that change could only be implemented at the state level, so in January, Kobach, along with election officials from Alabama and Georgia, requested that the EAC allow the states to alter the federal registration form to reflect the state’s requirement.

Newby’s approval of that request led to voter confusion in Kansas (where the law had been enforced for a couple of years), as well as a few lawsuits.

In February, the ACLU filed suit in federal district court on behalf of plaintiff Wayne Fish arguing that the change to the federal form violated the National Voter Registration Act. In May, U.S. District Judge Julie Robinson issued an injunction ordering that Kansas register the roughly 18,000 voters who had registered using the federal form at DMVs and were not registered because they did not show proof of their citizenship.

Kobach appealed to the U.S. 10th Circuit Court of Appeals, who issued its decision in mid-October. In the decision, the court noted that Kobach had failed to show evidence that the proof-of-citizenship requirement was needed when the state already requires an affirmation of citizenship, and there were only 30 cases of noncitizens registering to vote between 2003 and 2013, with an additional 14 attempts to register by noncitizens since then. Additionally, the ACLU’s proof of irreparable harm to citizens unable to vote swayed the court.

While Kobach was facing that suit (as well as Brown v. Kobach, which deals with the two-tier voting system created by the 2013 law), Newby was facing a lawsuit from the Brennan Center for Justice, the League of Women Voters chapters for Kansas, Alabama, and Georgia, and several other parties, arguing that Newby did not have the authority to authorize Kansas, Alabama, and Georgia to alter the federal voter registration form. This action, the plaintiffs argued, violated both EAC policy and federal law.

In early September, the U.S. Court of Appeals for the D.C. Circuit granted the requested injunction to strike Newby’s instructions and register anyone who had used the federal form since Newby’s instructions in January.

This decision overturned (2-1) the decision by U.S. District Court Judge Richard Leon. Leon had denied an injunction, holding that the plaintiff’s had not proven “irreparable harm.” D.C. Circuit Judges Judith Rogers and Stephen Williams thought differently, holding that the plaintiffs had demonstrated “irreparable harm, a likelihood of success on the merits, that the balance of equities tips in their favor, and that an injunction is in the public interest.”

While the 10th Circuit Court of Appeals and the U.S. Court of Appeals for the D.C. Circuit may have put a pin in Kansas’s proof-of-citizenship requirement for the upcoming election, Kobach and Newby still have the chance on the merits after the election on the merits.

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