Analysis: Citizenship law root of Kansas lawsuits

 Law creates conflicting dual voter registration system

By John Hanna
AP Political Writer

TOPEKA, Kan. (AP) — Secretary of State Kris Kobach and his critics are tangled in two lawsuits over whether Kansas will create a dual voter registration system, but the disputes are only proxies for ongoing battles over the state’s proof-of-citizenship law.

The lawsuits, one each in state and federal court, deal with how Kansas treats prospective voters who use the federal government’s national registration form. The federal form has people sign a statement affirming their U.S. citizenship but doesn’t require them to produce a birth certificate, passport or other citizenship papers. If people use state registration forms, they aren’t eligible to cast ballots in any race until they produce citizenship papers under a law that took effect in January.

Under a dual registration system, people who use the state form and comply with the proof-of-citizenship rule could vote in any race on the ballot. People who use the federal forms and don’t submit citizenship papers to election officials would be eligible to vote only in presidential, U.S. Senate and congressional races.

Kansas is moving toward such a system, though Kobach last week described the steps as only “contingency plans” for a worst-case scenario. The secretary of state championed the proof-of-citizenship law, and he’s trying to prevent his critics from using the national registration form to undermine the law’s enforcement. Meanwhile, his opponents are trying to prevent him from blocking a less restrictive path to voter registration.

“This is the path we chose to take,” said Tom Witt, executive director of Equality Kansas, the state’s leading gay-rights group, which is suing Kobach in the state court case.

The Equality Kansas lawsuit, filed last week in Shawnee County District Court, seeks to prevent Kobach from creating a dual registration system, arguing that it would violate voters’ rights to equal legal protection. The American Civil Liberties Union is representing the gay rights group, along with voters from Lawrence and Overland Park.

But three months ago, Kobach, Arizona Secretary of State Ken Bennett and their states filed a federal lawsuit in Kansas against the U.S. Election Assistance Commission, hoping to force it to revise the national voter registration form to help their states enforce proof-of-citizenship rules. Arizona enacted its law in 2004.

“I am trying to avoid a two-tiered system,” Kobach said.

Kobach, a conservative Republican and a former law professor, pushed the proof-of-citizenship policy as a way to prevent non-citizens from registering and possibly voting, particularly immigrants in the U.S. illegally. Large, bipartisan legislative majorities enacted the law, despite strong criticism from groups such as Equality Kansas, the ACLU, the NAACP and the League of Women Voters that it would suppress voter turnout.

In June, the U.S. Supreme Court ruled that Arizona could not refuse to accept the national voter registration form, even though people who use it aren’t required to provide citizenship documents.

Critics of the Arizona and Kansas proof-of-citizenship laws contend that the two states must accept the national forms and allow those who use them to vote in all elections. Kobach contends that the high court ruling allows states to “carve out” federal races from state and local ones, creating separate registration rules based on which forms people use.

Arizona officials announced that they would create a dual registration system, though they said it would be costly and burdensome. In July, Kobach’s elections director, Brad Bryant, sent county officials a memo, directing them to track which voters use the federal form to register because they can vote only in federal races.

Kobach said Kansas will be forced to impose a dual registration system if the Election Assistance Commission doesn’t modify the national registration form. If the current situation stands, Kobach said, groups opposed to the law would have an incentive to encourage people to use the national form to evade the proof-of-citizenship requirements.

He said that historically, less than 1 percent of the state’s 1.7 million registered voters have used the national form.

“They would try to expand that loophole,” Kobach said. “This is just their latest attempt to prevent the people of Kansas from securing their elections.”

Witt said he’s personally helped register dozens of voters using the national form since the proof-of-citizenship law took effect. Doug Bonney, chief counsel for the ACLU of Kansas and Western Missouri, said the rule hinders voter-registration drives by groups like Witt’s and the League of Women voters.

Bonney argues that Kobach in fact has already imposed a dual registration system for Kansas unilaterally — without any legal authority to do it — to avoid complying fully with a U.S. Supreme Court decision that undercuts the state’s proof-of-citizenship law. The ACLU-Equality Kansas lawsuit compared a dual registration system to a policy enacted in Mississippi in 1890 to block blacks from voting.

“It’s disenfranchising voters and also really putting the fritz to any efforts to register voters in Kansas,” Bonney said.

One odd result of the lawsuits is that Kobach and his critics profess to have the same goal, avoiding a dual voter registration system for Kansas.

But they’re really fighting over the proof of citizenship requirement, making moves designed to either ensure that it’s enforced or to lessen its effects.

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