Kris Kobach’s attempt to throw out thousands of votes in Tuesday’s primary election has fallen short in a Kansas court.
A Shawnee County district judge ruled Friday that the votes of 17,500 people whose registrations had been questioned are to be tallied in Tuesday’s primary.
Judge Larry Hendricks issued a temporary order, meaning the votes will be counted Tuesday. The American Civil Liberties Union filed the lawsuit against Secretary of State Kobach on behalf of Kansas voters who were told that they could vote in federal elections but that their votes in state and local elections would not be counted.
Kobach argued that by ruling against him, the state would be letting people who weren’t U.S. citizens vote in the primary.
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Roughly 50,000 voters could be affected by the rule by the time of November’s general election. Every seat in the Kansas Legislature is up for election this year. Hendricks repeatedly referred to the thousands of Kansans who wouldn’t be allowed to vote in state and local races on Tuesday if the rule stood.
“That’s an overwhelming majority of U.S. Citizens that will lose their constitutionally mandated right to vote,” Hendricks said in his ruling.
Many of the voters in question registered under the federal “motor voter law.” Though they would have satisfied federal voting laws when they registered at motor vehicle license offices, they did not provide proof of citizenship like a U.S. passport or birth certificate. Under a 2013 Kansas law, a new voter had to show proof of citizenship to vote in an election.
The Kobach-supported voting law has been challenged frequently in court. Earlier this month, he helped the State Rules and Regulations Board pass a temporary state rule that he hoped would satisfy a U.S. district judge’s injunction that allowed those 17,500 voters to participate in federal elections.
Under the temporary rule, any votes cast in state and local races would be thrown out. The rule would last for 120 days, meaning it would expire shortly after the general election.
The change happened quickly. The public was told less than a day in advance about the board’s meeting. No public comments were taken before the board approved the new regulation. And it came on the eve of early voting for Tuesday’s primary.
ACLU lawyer Sophia Lin Lakin said the voters were being disenfranchised and that the temporary rule treated them as second-class citizens.
“This segregates Kansas voters into two unequal tiers,” she said.
On Friday, Hendricks chastised Kobach for the last-minute rule change. But he also lamented the further confusion that the ACLU’s request for a restraining order on the rule could cause for the group of voters.
The secretary of state emphasized that doing what the ACLU wanted could confuse poll workers. In his ruling, the judge tossed aside that point.
“It shouldn’t be difficult to say to those folks, ‘Just do it how you would (normally) do it,’ ” Hendricks said.
Critics of the temporary rule had said it could sway Tuesday’s primary results. Voter turnout is often low in primary elections but receives a bump in November when presidential candidates are also on the ballot.
Another hearing in the matter is scheduled for September.
All parties expressed frustration at the last-minute nature of Friday’s decision. But the judge and the ACLU said they’d tried to schedule the hearing earlier. Friday afternoon was the only time that worked for Kobach.
In an interview earlier this week, Kobach maintained that his system works. After the ruling, he doubled down on that belief. Friday’s ruling blew a hole in the system, Kobach said.
Kobach’s estimates of how many noncitizens were included in that voter group varied Friday. He said at one point that there were 25 recent cases of noncitizens being on the voting rolls in Sedgwick County, where Wichita lies. Given the county’s size, he said, that’s likely only the tip of the iceberg.
“What’s the real number in Sedgwick County? I don’t know,” Kobach said. “Is it 50? Is it 200? Is it 500? Then you multiply that times five. I don’t know what percentage of the 17,000 are noncitizens, but I would say it’s a substantial number.”
The state has a large noncitizen population, Kobach said. He worried that they may now be able to vote in Tuesday’s primary, but he conceded his concerns of the number growing into the hundreds was a guess.
“It’s entirely possible that the majority (of the 17,500) are not citizens,” Kobach said.