Government & Politics

Election year brings new focus to voter rights in courts, legislatures

Kansas Secretary of State Kris Kobach was in federal court Thursday in Kansas City, Kan., to argue that the Legislature has a right to make policy for voter qualifications.
Kansas Secretary of State Kris Kobach was in federal court Thursday in Kansas City, Kan., to argue that the Legislature has a right to make policy for voter qualifications.

Eric and Ivanka Trump learned this week they won’t be able to vote for their dad, Donald, in New York’s primary Tuesday. They didn’t register as Republicans in time.

Trump was philosophical. “They were, you know, unaware of the rules,” he ruefully told Fox News.

The story prompted chuckles in some political and media circles. But it also helped illustrate an ongoing truth:

In 2016, America’s state-based election laws can confuse even the most interested voters.

From a federal courthouse in Kansas City, Kan., Thursday, to Arizona and beyond, lawyers are arguing over how and when we vote.

Voting rules are a confusing, contradictory hodgepodge from state to state and sometimes county to county, many experts say, often based more on perceived political advantage than fair exercise of the franchise.

Consider: You can cast an early ballot in Kansas, but not in Missouri. You need a picture ID to vote in Texas, but not in California. In Colorado you can register on Election Day; in Arkansas, you must be on the registrar’s books 30 days before going to the polls.

In Oregon, starting this year, voters are automatically registered when they get a driver’s license or a state-issued identification card, a law that could make 500,000 additional citizens eligible to cast ballots. Voters in Oregon will be mailed a ballot, which they can fill out and mail back.

New York, on the other hand, requires primary voters to register by party months ahead of time — that’s what caused the Trumps’ headache. If the siblings lived in nearby New Hampshire they could have easily cast ballots for the GOP front-runner in that state’s primary.

“It is a patchwork,” said Jonathan Brater, an election expert at the Brennan Center for Justice at New York University.

Voting requirements are even more confusing because state lawmakers can’t resist the urge to tweak the rules in election years, often to enhance the chances of electoral success for the party in power.

Last year, more than 100 bills were introduced across the country to restrict access to registration or voting. At the same time, more than 400 bills were filed to enhance voter access.

In 2016, 17 states, including Kansas, will have new voting restrictions in place before presidential ballots are cast, according to the Brennan Center.

Missouri’s lawmakers are debating, yet again, a requirement that voters present a picture ID before casting ballots in the state. Democrats filibustered the proposal early this week, and it was set aside for now.

While lawmakers debate all aspects of the voting experience, registration appears to be getting the most focus this year. “Every election there are millions of people who say they tried to vote but couldn’t because of registration problems,” Brater said.

And the battle over registration requirements is increasingly fought in the courts. Federal laws were intended to standardize the process, at least in federal elections, but they’ve faced withering legal challenges for years.

On Wednesday, a federal appeals court said some would-be Wisconsin voters who failed to obtain needed identification documents after a “reasonable” effort might be entitled to cast ballots without them. Changes to Wisconsin’s election rules this year were blamed for long lines in the state’s primary this month, especially with younger, first-time voters.

On Thursday, the Democratic National Committee said it would sue the state of Arizona over alleged voting irregularities in the state’s March 22 primary.

Also on Thursday, a federal court in Kansas City, Kan., considered a request to immediately prohibit a Kansas requirement that registrants present proof-of-citizenship documents when registering to vote at a driver’s license office.

The suit is being pursued by the American Civil Liberties Union and the League of Women Voters in Kansas.

“Defendants have created a needless, bureaucratic maze of barriers to registration that has already deterred many Kansans from participating as voters,” the lawsuit claims. “These actions are unlawful and must be halted.”

But Kansas Secretary of State Kris Kobach, a defendant in the case, told the court the state Legislature has a right to make policy when it comes to voter qualifications.

“The law is the law,” he told U.S. District Judge Julie Robinson. “The only way to stop (illegal voting) is on the front end.”

Kobach’s argument was supported by the Public Interest Legal Foundation, which filed a friend-of-the-court brief. “The minimal requirements of the federal form have failed to keep aliens off the voter rolls and out of the voting booth,” it said.

Thursday’s case is different from one filed in Washington in February after Brian Newby, the newly appointed director of the Elections Assistance Commission, approved new rules in three states — including Kansas — that allow the requirement of citizenship documents when a would-be voter uses a federal form to register.

Under previous instructions, registrants simply checked a box indicating their citizenship.

Critics say Newby, the former director of the Johnson County election office, acted unilaterally, and as a political ally of Kobach’s, when he issued the order. Kobach has fought for years to require Kansans to provide such documents when voting in all elections.

A federal court in Washington has yet to rule on the challenge to Newby’s February decision.

Rick Hasen, a professor at the University of Calfornia-Irvine and a nationally known expert in election law, called the situation bizarre.

“You’ve got this executive director making this very controversial call without getting approval,” Hasen said. “It looks, from the outside, like not-very-fair play.”

Critics believe Kobach’s actual goal is to suppress voter turnout, potentially helping Republicans. He vigorously denied the allegation.

“That’s ridiculous,” Kobach said said Thursday. Voter registrations and turnout increased, he said, after the tighter regulations were put in place.

Hans von Spakovsky, an elections expert at the conservative think tank Heritage Foundation, defended the proof-of-citizenship rule.

“Whether it’s intentional or not, when a non-citizen votes that is diluting the votes of actual citizens,” he said. “And it’s pretty clear that just having that question on the form is not sufficient.”

While the registration process has been the focus of this spring’s legal battle over voting, other ballot-related concerns — photo ID and early voting — remain important issues before state legislators.

Missouri state Sen. Will Kraus, a Republican running for secretary of state, has promoted a photo ID requirement in the state for years. He tried again this week.

“(Y)ou need a photo ID to unionize but not to vote for your elected officials,”the senator from Lee’s Summit tweeted.

But a coalition of Democrats and lobbying groups continued to argue against the plan.

“We must stop extreme photo ID,” said a Facebook post from Springfield’s NAACP chapter. It urged lawmakers to “vote no to disenfranchising people of color, the elderly, women and more! There is NO voter impersonation fraud in Missouri.”

Disputes over voter registration and ballot box access seem unlikely to end anytime soon. In a presidential election year, registration and turnout can make the difference between winning and losing for some campaigns.

And political and legal disputes over voter rights have been constant in the United States for decades. The federal government intervened in the 1960s to allow more voters to register in parts of the deep South, and the argument has continued since.

But Brater, with the Brennan Center, says there’s evidence both parties are using voting rights to advance their own chances of election.

“That is a big problem,” he said. “Both parties have been very guilty of manipulating the rolls” through redistricting and fights over voter access.

“It doesn’t have to be that way.”

Dave Helling: 816-234-4656, @dhellingkc