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Kansas floats two-tiered voting system as way to comply with Supreme Court ruling

Updated: 2013-10-22T02:54:31Z

By BRAD COOPER

The Kansas City Star

Kansas and Arizona are developing unusual voter registration systems to comply with a U.S. Supreme Court decision that bars requiring proof of citizenship for federal elections.

Kansas Secretary of State Kris Kobach is working on a tiered system that would divide voters into two classes: one eligible to vote in just federal elections and the other eligible to vote in all elections, depending on the form that a voter completes.

The idea arose from last summer’s U.S. Supreme Court decision that said Arizona could not require proof of citizenship for prospective voters using the federal registration form. It left open the question of whether states could require proof of citizenship on their registration forms.

The federal form does not require would-be voters to prove citizenship. They are required only to declare under penalty of perjury they are citizens.

Kansas and Arizona are suing the federal government to modify the federal form for Kansas and Arizona so it would allow for requiring proof of citizenship.

Kobach said the dual registration system was a fallback in case Kansas loses the lawsuit. He said it is highly unlikely it will be implemented.

“Out of an abundance of caution, we’re making a contingency plan, just in case we don’t have that relief,” Kobach said. “I do believe the lower courts will follow the Supreme Court’s lead and there won’t be a tiered system of elections.”

The idea has been tried in two other states –– Illinois and Mississippi –– and was met with legal defeat. The idea in Arizona and Kansas is getting national attention. Some critics have called it “separate but unequal” voting.

Critics not only question whether the system is legal but also believe it has the potential to be unworkable.

“There all kinds of problems with it,” said Doug Bonney, the legal director for the American Civil Liberties Union of Kansas and Western Missouri.

The new proof of citizenship requirement in Kansas has drawn plenty of heat because it has already kept thousands of people from registering to vote because they didn’t have documents to prove their citizenship.

The law started earlier this year. As of last week, 18,294 people have had their voter registrations set aside until they can present documents –– such as a birth certificate or a passport –– showing they are citizens. A vast majority of those are people who were registering to vote at a driver’s license office.

There are 3,518 voter registrations that have been held up in Johnson County because the would-be voters hadn’t proved their citizenship. Another 1,067 registrations have been suspended in Wyandotte County.

The ACLU plans to try to block the law in court. Kobach said he was simply following the Supreme Court’s ruling to carve out a separate ballot for people who registered using the federal form.

Here is how the dual system might work if it were implemented:

A prospective voter who fills out a federal registration form and doesn’t provide proof of citizenship would get a separate ballot restricted to federal elections for Congress, U.S. Senate or president. A voter who completes either the state or federal form and shows proof of citizenship could vote in all elections, including city, county and statewide races.

Kobach already has directed county election officials to track voters who registered using the federal form since Jan. 1. It is not expected to be many people –– only about 10 in Johnson County –– because the form is not widely distributed and is primarily available on line at the website of the U.S. Election Assistance Commission.

The Kansas and Arizona idea is similar to approaches that Illinois and Mississippi took in the 1990s when they refused to go along with the federal “motor voter” law, which allowed people to register to vote at driver’s license offices.

In both states, voters registering at driver’s license offices could only participate in federal elections. Voters registering at the county courthouse could participate in all elections. Separate ballots were distributed to voters who were eligible only to cast ballots in federal races.

Reports at the time indicated the Mississippi system was a bureaucratic nightmare for elections officials. It also caused confusion with voters, leading them to show up at the polls not knowing whether they could cast ballots in certain elections.

The tiered systems in Illinois and Mississippi ultimately met defeat in the courts. A state appeals court ruled that Illinois’ two-tiered voting system violated the state’s constitutional guarantee to equal elections.

In Mississippi, the election system was not approved by the Justice Department, as was required by the federal law at that time.

Critics of the ideas proposed for Arizona and Kansas are focused more on the impact of a dual system than possible legal obstacles.

“There are really serious policy problems with doing this,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice, a legal think tank at New York University’s School of Law.

“It is not clear to me why citizens would want their states to set up two completely separate voter-registration systems (and) why they would want to have that kind of inefficiency.”

But Johnson County Election Commissioner Brian Newby said he thought the system could be managed well because there are just a handful of people who have registered using the federal form. Newby said plans could be made to get ballots for a federal election to the voters who registered with that form.

However, it could cause problems if droves of people decide to register using the federal form. “If we got to the thousands, then we’ve got major issues,” Newby said.

In Arizona, election officials estimate there are 1,500 people statewide who have registered using the federal form, which is made more widely available there than in Kansas.

It is thought that there are 900 people who registered with the federal form in Maricopa County, where Phoenix is located, and about 300 in Pima County, where Tucson is located.

Maricopa County officials told The Arizona Republic that it could cost $250,000 to provide the extra ballots the new system will require.

A spokesman for Arizona Secretary of State Ken Bennett said the state was trying to comply with the Supreme Court while recognizing the proof of citizenship requirement approved by the voters.

“As election administrators, it’s kind of a mess, but we have to comply what the law is,” Matt Roberts said. “The challenges it presents election administrators, we will overcome.”

To reach Brad Cooper, call 816-234-7724 or send email to bcooper@kcstar.com.

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