The state of Kansas will pay the American Civil Liberties Union and a team of lawyers $1.9 million in legal fees stemming from its failed defense of a state law requiring Kansans to show proof of citizenship when registering to vote.
Court records filed on Friday showed that the two sides have reached an agreement on the legal fees after haggling over them for months. They are asking U.S. District Judge Julie Robinson to approve the fee settlement.
The amount agreed upon is far less than the approximately $4 million that had been sought by the plaintiffs in two related cases.
At one point, the ACLU had sought $3.3 million in fees in the case, but had cut its request to $2.5 million.
Robinson agreed to let lawyers from the state and the American Civil Liberties Union settle the dispute over legal fees with a mediator.
There are questions about how the fees will be paid, however.
Former Kansas Secretary of State Kris Kobach agreed that his office would bear the cost of the legal fees when he decided to personally defend the law in court.
The law was struck down in district court and later in a federal appeals court. The U.S. Supreme Court ultimately refused to hear the case.
Kobach, who drafted the citizenship requirement, was held in contempt of court during the case and was ordered to enroll in continuing legal education courses.
Kobach decided to take on the case even after the attorney general’s office alerted him to the financial implications of defending the state’s proof-of-citizenship requirement for registering to vote, which the courts ruled as unconstitutional.
Chief Deputy Attorney General Jeff Chanay put Kobach on notice in 2015 that the secretary of state could personally try the case under certain conditions, including that his office take on all legal fees, according to records obtained under the state’s open records law.
Kobach signed the letter acknowledging the conditions under which he would defend the law, which the courts found imposed an unconstitutional hurdle to the right to vote.
If the attorney general had represented the case, the attorney fees sought by the ACLU and others would have been paid from the tort claims fund, which is bankrolled by general state tax dollars.
Paying the legal expenses from the secretary of state’s budget would be complicated since it’s funded with fees designated to cover the cost of certain taxpayer services that cannot be redirected elsewhere without the risk of more litigation.
A spokesman for Scott Schwab, the current secretary of state, declined comment.
Kobach, who is now running for attorney general said his office agreed to take on the case because it would save money.
The decision “saved the state money because the attorney general’s office has limited personnel and the attorney general’s office almost always has to hire private counsel to handle the extra workload,” Kobach said in an interview earlier this year.
“My volunteering our attorneys at the secretary of state’s office took a huge workload off the back of the attorney general’s office at the most time-consuming stage of the case — the trial stage,” he said.