Kansas Judge Invalidates Two-Tier Registration

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Late last Friday, a Kansas state court judge invalidated the state’s two-tier registration system in a 30-page opinion granting summary judgment to two plaintiffs challenging the state’s action to deny state and local ballots to voters who do not provide proof of citizenship as required by Kansas law.

Friday’s ruling is a setback for Secretary of State Kris Kobach, who has championed the proof-of-citizenship requirement and who set up the two-tier system in response to federal court rulings blocking proof-of-citizenship for voters using the federal registration form. The Kansas City Star has more:

Kansas Secretary of State Kris Kobach can’t operate a two-tier voting system that allows him to count only votes cast in federal races for voters who registered using a federal form, a state judge ruled Friday …

In his ruling, Shawnee County District Judge Franklin Theis said that in Kansas, “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.”

Kobach’s stance “ignores the fact that no Kansas law sanctions a challenge to a ballot by a ‘federal form’ registrant merely because they are a ‘federal form’ registrant,” the ruling states.

Kobach and the state elections director have no legal authority “to compromise or limit” federal form registrants, Theis said.

The case was muddied somewhat when the Secretary of State’s office went ahead and promulgated regulations allowing for the completion of the registrations of the two named plaintiffs in the case, raising suspicion that the state was trying to make the case go away by eliminating the source of the would-be voters’ “injury” under the proof-of-citizenship law. The court went ahead and ruled on the case anyway, citing doubts about the validity of the new regulations and noting that there were other voters likely to suffer the injury who may not be “so enthusiastically assisted by the Secretary, as were plaintiffs.” (p. 10)

Central to the court’s opinion is the idea that Kansas law provides neither for a rejection of the federal form for failure to comply with proof-of-citizenship nor a two-tier system. In particular, the judge was troubled by the treatment of certain ballots as provisional, noting that such ballots are are intended to be used when there is an error – and the only “error” was the state’s policy decision to challenge such ballots in the first place, “improperly creating a ballot that was subject to a loss of anonymity and treated differently from other registered voters, all to be accomplished through an intentional government design that was without legal premise.” (p. 22)

Not surprisingly, SoS Kobach has indicated he will appeal:

Kobach said Friday he will file a motion to reconsider or appeal the ruling.

“The case is far from over,” Kobach said. “We don’t anticipate this decision is going to be the final word on the subject.”

This decision could have significant effects beyond the appeal. First, the legislature could move to “fix” the state law problems cited by the judge; this is not unrealistic given the high degree of support lawmakers – at least those in the majority – have shown for SoS Kobach’s efforts to establish and enforce proof-of-citizenship. Second, the case gives new legal ammunition to opponents of Arizona’s proof-of-citizenship laws in their efforts to block a two-tier system in that state. Finally, this case is probably sufficient to rekindle partisan fights about voting laws in Kansas and elsewhere in an already-charged presidential year.

There’s a lot going on here – and a lot likely left to happen. Stay tuned …