UPDATED: Kansas citizenship requirement loses in appeals court

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(Updated with edits throughout as well as legislative reaction, comments from Kobach, the governor, the secretary of state’s office and the attorney general’s office)

A federal appeals court on Wednesday found that Kansas’ proof-of-citizenship requirement for registering voters was unconstitutional and upheld a lower-court decision blocking enforcement of the law.

The U.S. 10th Circuit Court of Appeals ruled that the law heralded by former Secretary of State Kris Kobach disenfranchised 31,000 voters and the district court properly concluded the citizenship requirement imposed a significant burden on the right to vote.

The court – acting with two judges because one died last month – found that the citizenship requirement was unconstitutional and violated the so-called national motor-voter law.

“We agree with the secretary that Kansas’s interest in counting
only the votes of eligible voters is legitimate in the abstract, but, on this record, we do not see any evidence that such an interest made it necessary to burden voters’ rights here,” the two-judge panel wrote in its opinion.

The opinion upheld U.S. District Judge Julie Robinson’s 2018 decision that rejected Kobach’s effort to preserve a law that has been a hallmark in his battle to crack down on illegal immigration.

Robinson had expressed deep skepticism about claims of rampant voter fraud stemming from noncitizens registering to vote while many thousands of Kansas were not able to register.

Evidence at trial revealed that almost 12 percent of all voter registration applications, or 30,732, submitted since the law started 2013 were invalidated because of the citizenship requirement. They were either canceled or placed on a suspended list.

With only 39 confirmed cases of a noncitizens registering from 1999 to 2013 before the citizenship requirement started, Robinson could not find “empirical evidence that a substantial number of noncitizens” successfully registered to vote.

She pointed out that the 39 cases made up only 0.002 percent of all Kansas registered voters as of Jan. 1, 2013.

To win the case, the state had to show that the registration requirements of the motor-voter law – otherwise known as  the National Voter Registration Act – were insufficient for determining voter eligibility.

Federal law only required the minimum amount of information necessary to prevent duplicated voter registrations so the state could assess the eligibility of the prospective Kansas voters.

The appeals court upheld the lower-court ruling that the citizenship law required more information than federal law presumes necessary for state officials to meet their eligibility-assessment and registration duties.

The American Civil Liberties Union, which brought the lawsuit against Kobach, celebrated the decision.

“This law disenfranchised tens of thousands of Kansans, denying them the most fundamental right in our democracy,” said Dale Ho, director of the ACLU’s Voting Rights Project.

“We are gratified the court stuck it down, and now call upon Kansas Secretary of State Scott Schwab to turn the page on Kris Kobach’s sorry legacy of voter suppression, drop any further appeals, and work with us collaboratively in the interests of all Kansas voters,” he said.

Schwab, who succeeded Kobach as secretary of state in 2019, had not made a decision on whether to appeal the ruling.

“Our office is thoroughly reviewing the court’s decision and will confer with the attorney general on how to move forward,” Schwab said in a statement.

Attorney General Derek Schmidt is reviewing the opinion and will consult the secretary of state on the next steps, a spokesman said.

Kobach criticized the two appeals court judges – Mary Beck Briscoe and Jerome Holmes – who decided the case.

“The decision was not a surprise given the two judges that issued it,” he said.

“Those are two of the more liberal judges on the 10th Circuit and I have argued cases in front of both of them.”

Briscoe was appointed to the appeals court by former President Bill Clinton and Holmes was appointed by former President George W. Bush.

Briscoe served on the Kansas Court of Appeals from 1984 to 1995 and also worked as a federal prosecutor in Kansas.

“The ruling was clearly incorrect,” Kobach said. “I am very confident if the attorney general appeals, the Supreme Court will overturn this decision.”

Kobach said the attorney general should appeal the case because the bill creating the requirement was passed with overwhelming majorities in the Legislature in 2011. The bill passed 111-11 in the House and 36-3 in the Senate.

“It’s important for the people of Kansas to let the bipartisan legislation be upheld,” he said.

Kobach said the case has national significance because three other states – Georgia, Arizona and Alabama – have similar laws on the books.

Gov. Laura Kelly said Wednesday she thought the appeal should be dropped, but added she doesn’t get to make the decision.

“We ought to be doing everything that we can to encourage voting,” said Kelly, who voted for the requirement in 2011 but later came out against it.

“If we have problem with voting in the state of Kansas and across the country it’s that not enough people exercise their right” to vote, she said.

“I think eliminating any barriers to voting is a good thing.”

Republican state Rep. Fred Patton, chair of the House Judiciary Committee, said the decision whether to appeal puts the attorney general in a bind since the law is still on the books.

“I don’t want to see the attorney general wasting tax dollars  appealing something if he’s pretty confident that those decisions aren’t going to get reversed,” he said.

“On the other hand, it is a piece of legislation that has passed both chambers and has become law,” he said.

“In most cases I would want the attorney general – whether I voted for the bill or not – to fight to see the law implemented because that’s how the process works,” he said.

Democratic state Rep. John Carmichael, the ranking member on the Judiciary Committee, said Schwab should drop the case.

“Scott Schwab has told us his objective is to run fair, efficient elections. He’s told us that he’s not here to repeat Kris Kobach’s mistakes of the past,” Carmichael said.

“Hopefully, he will, in consultation with the attorney general, recognize that we’ve wasted enough time and money on Kris Kobach’s foolish errand.”