Unpacking the dustup this week between Kansas Republican leaders and Democratic attorney Paul Davis takes a close reading of ethics law.
GOP leaders cited an ethics statute when they called on Davis to remove himself from a lawsuit against Secretary of State Kris Kobach.
Davis said they were reading the law wrong and promptly declined to withdraw.
The statute, as the GOP said, prohibits a lawmaker from attacking legislation in court as unconstitutional for up to a year after he or she leaves office, unless the legislator voted against the proposal.
But that’s not all it says.
Carol Williams, executive director of the Kansas Governmental Ethics Commission, confirmed the law’s further wording, that it applies to claims that a legislative action is unconstitutional “because of error in the legislative process.”
That wording has been on the books since the commission’s inception in 1974, Williams said.
“We’re not contending there’s any kind of error in the legislative process,” Davis said.
“The statute doesn’t apply to the situation,” said Davis, who ran against Republican Gov. Sam Brownback in 2014 and lost.
“If it did, you can bet Kris Kobach would be screaming and yelling and asserting this.”
Davis’ House term ended before the start of the 2015 legislative session. Davis voted in favor of the proof-of-citizenship voter law as a House member in 2011.
Clayton Barker, executive director of the Kansas GOP, disagreed with Davis’ reading of the law. He said Wednesday that the statute apparently has never been interpreted and that the “error” might not refer to an error in the lawmaking process but that the Legislature erred in passing an unconstitutional law.
That would fit with the overall purpose of the law, to prevent legislators from financially benefiting from their votes, Barker said. Also, he said, the law has no enforcement mechanism.
Kansas Republican Party chairman Kelly Arnold had said in a news release Tuesday that Davis’ “apparent illegal conduct is most troubling” and that he should immediately withdraw from the case.
It will be a couple of months before Davis and Kobach hash it out in court. On Wednesday, U.S. District Judge Julie Robinson set a Dec. 4 hearing date.
The lawsuit objects to Kobach’s rule that voter application forms must be discarded after 90 days if not complete. Many applications lack the required proof-of-citizenship documents, such as a birth certificate or passport.
Filed on behalf of two Douglas County residents, the lawsuit asks for a preliminary injunction that would stop county election officials from removing names from the voter application list. It also questions the proof-of-citizenship law.
While the culling of applicants past the 90-day deadline technically took effect Friday, their applications could be reinstated if the injunction is granted.
Kobach has said the applicant names are retrievable, and Davis said Wednesday he has independently confirmed that’s true.
Davis and Kobach have been mentioned as possible candidates for governor in 2018.
While Davis charged GOP officials with political motives in their call for him to withdraw, Republicans lobbed the same charge at him for filing the suit in the first place.
“I’m an attorney in private practice,” Davis said. “I’m representing a client, and I happen to think it’s an important case. I’m not running for any kind of political office.”
Here is the text of the statute:
(c) No individual, while a legislator or within one year after the expiration of a term as a legislator, shall represent any person in a court proceeding attacking any legislative action taken or enactment made during any term such individual served as a legislator as being unconstitutional because of error in the legislative process with respect to such action or enactment unless such legislator voted no upon the enactment of the measure and declared on the record, during such term, that such legislation was unconstitutional. The prohibition of this subsection (c) shall not apply to a current or former legislator charged with a violation of such legislative action or enactment.