A judge is standing by his earlier ruling that Kansas Secretary of State Kris Kobach has no legal right to bar people from casting ballots in local and state elections because they registered to vote using a federal form that did not require proof of citizenship.
In a ruling made public Thursday, Shawnee County District Judge Franklin Theis rejected Kobach’s request that he reconsider an earlier decision. Theis said in January that the right to vote under state law is not tied to the method of registration.
Two weeks after that decision, Brian Newby, the new executive director of the U.S. Election Assistance Commission, added a documentary citizenship requirement on the national voter registration form for residents of Kansas, Georgia and Alabama.
Newby unilaterally changed the national registration form without approval from his agency’s commissioners.
That change prompted Kobach to ask the judge to reconsider his ruling.
But Theis said in this week’s ruling that if challenging “overreaching governmental conduct” could be circumvented because a law or regulation is later changed, then there could “never be any efficient or practical check on the abuse of power by a governmental official.”
He also noted that Newby’s action has been challenged by a coalition of voting rights groups.
The order was signed Tuesday, the same day a federal judge’s order in a separate case went into effect that requires more than 18,000 Kansas residents who registered at motor vehicle offices without citizenship documents to be registered for federal elections. The 10th Circuit Court of Appeals refused last week to block the temporary injunction.
That federal court order is expected to eventually affect 50,000 voters before the November election.
It is unclear what impact the state court’s latest ruling will have on instructions Kobach sent to county elections officials Tuesday that said the voters who registered at motor vehicle offices without providing citizenship documents should not be allowed to vote in local and state races.
Kobach said in an emailed statement that Theis’ order fails to address the “mootness problem” that has existed in the case for nearly five months, an apparent reference to the action taken by Newby to require the citizenship documentation.
“Nor does he possess jurisdiction to hear the case in the first place,” Kobach said. “I’m confident that his decisions will be reversed on appeal due to the multiple legal errors contained in them.”
The American Civil Liberties Union, which represents voters in both the federal and the state cases, said Thursday its lawyers are trying to determine their next steps.
“We have a judgment out there that says you don’t have any legal authority to do what you are doing, secretary of state, and nonetheless the secretary of state is ignoring that,” said Doug Bonney, chief council for the ACLU Foundation of Kansas.
“And we have to figure out how we deal with it. That is what we are trying to do right now.”
The U.S. Supreme Court has said that states must accept and use the federal voter registration form, and an appeals court ruled in 2014 in a lawsuit filed by Kobach that states could not force the commission to require residents to provide proof-of-citizenship documents on the national form.
Kansas law has required voters to provide proof of citizenship since January 2013.
Kobach has championed the documentation requirement as a way to prevent non-citizens from voting, particularly immigrants in the U.S. illegally.
Critics contend the requirement suppresses turnout.
Brian Newby was Johnson County’s election commissioner for 11 years before being appointed to the U.S. Election Assistance Commission, an independent, bi-partisan agency created by the Help American Vote Act of 2002.