Federal court rejects Kansas’ appeal, says Kobach-crafted law disenfranchised 30,000
A federal appeals court has rejected Kansas’ effort to reinstate a law requiring prospective voters to provide birth certificates, passports and other documents before registering to vote.
The U.S. 10th Circuit Court of Appeals affirmed a lower court’s ruling Wednesday that the policy, crafted and championed by former Kansas Secretary Kris Kobach, places undue barriers to Kansans exercising their constitutional right to vote.
The proof of citizenship law took effect in 2013 and caused thousands of potential voters to go into a suspended registration status when they failed to provide the required documents. The court said the number of suspended voters directly undercuts the state’s argument that the law ensures the integrity of elections.
“And, furthermore, if the Secretary is correct that Kansas’s recent history is sprinkled with some hotly contested, close elections such that he reasonably could have an especially keen interest in ensuring that every proper vote counts, we are hard-pressed to see how that interest is furthered by the DPOC law—a law that undisputedly has disenfranchised approximately 30,000 would-be Kansas voters who presumably would otherwise have been eligible to vote in such close elections,” the ruling states.
Kobach, in an interview Wednesday, disputed the ruling.
“The opinion is clearly wrong and I have a high level of confidence that it will be overturned by the Supreme Court if the Attorney General appeals it to the Supreme Court,” he said.
Kobach represented himself during the earlier portion of the case in 2018 when the law was struck down. A candidate for governor at the time, he is now running for U.S. Senate as a Republican.
During the 2018 trial, plaintiffs’ attorneys demonstrated that many citizens were prevented from voting because of the law.
Kobach continues to maintain that non-citizens were also blocked from voting because of the restriction and pushed back on the court’s use of the number of suspended voters as evidence of disenfranchisement.
“Some of those individuals were not actually U.S. citizens, so they never should have been registered,” Kobach said. “So for the court to seize on that 30,000 figure shows that the court didn’t actually understand how the law operated.”
After Kobach lost the 2018 race for governor, his successor, Kansas Secretary of Scott Schwab, became the defendant in the case. Kansas Attorney General Derek Schmidt’s office took on the job of representing Schwab’s office, which oversees Kansas elections.
Representatives for Schmidt and Schwab said their offices are reviewing the decision. They did not immediately answer whether the state will seek to appeal the ruling to the U.S. Supreme Court.
Dale Ho, the lead attorney for the American Civil Liberties Union, which represented the plaintiffs, called on Schwab to accept the ruling by the appeals court.
“This law disenfranchised tens of thousands of Kansans, denying them the most fundamental right in our democracy. We are gratified the court struck it down, and now call upon Kansas Secretary of State Scott Schwab to turn the page on Kris Kobach’s sorry legacy of voter suppression, drop any further appeals, and work with us collaboratively in the interests of all Kansas voters,” Ho said in a statement.
Rick Hasen, an election law expert the University of California, Irvine School of Law, said the Kansas law has been difficult to defend in court because evidence shows it “literally disenfranchised tens of thousands of people.”
He also said Kobach’s well-publicized stumbles at the district court trial, which led to the judge ordering him to complete a legal remediation course, could hamper the state’s ability to mount an appeal.
“This law was Kobach’s baby and he’s no longer in office. This would be a terrible record to take up to try to get a reversal because Kobach litigated this case so poorly,” Hasen said in a post on his Election Law Blog.
Kansas Gov. Laura Kelly has no direct role in the state’s decision to appeal the ruling, which is up to Schwab, a Johnson County Republican, as the state’s top election official. She said Wednesday the state should drop its appeal, however.
Kelly, a Shawnee County Democrat, voted for the law in 2011 as a member of the Kansas Senate when it passed with a bipartisan majority, but she later came out against it and supports its repeal.
“We ought to be doing everything that we can to encourage voting,” Kelly said. “If we have a problem with voting in the state of Kansas and across the country, it’s that not enough people exercise their right.”
This story was originally published April 29, 2020 at 12:17 PM with the headline "Federal court rejects Kansas’ appeal, says Kobach-crafted law disenfranchised 30,000."
