Peaking Behind Kobach's Curtain: Proof That the 'SAFE Act' Disenfranchises Kansans

The two recent Supreme Court decisions impacting election administration will change the landscape of voting rights for many states and areas of the country. While analysts and legislators are still determining the impact and next steps to address these decisions, Kansas' proof of citizenship law is offering a real world look at the impact these recently enacted laws can have on American citizens' ability to participate in the electoral process.

When the Supreme Court ruled against Arizona's refusal to accept voter registration applications on the federal voter registration form because it did not comply with Arizona's proof of citizenship requirements, Secretary Kobach defended a similar provision in Kansas law in the "SAFE Act" that he drafted and championed in 2011. Regardless of whether or not Secretary Kobach's legal maneuvering protects the SAFE Act from the recent Supreme Court ruling, it may be in violation of a separate section of the National Voter Registration Act.

The proof of citizenship section of the SAFE Act, which just went into effect on January 1, 2013, is already preventing over 12,000 Kansans from registering to vote. Additionally, it is creating extra work and expense for local election officials.

There have been varying reports that place the blame of this logjam on both the failure in the Kansas Division of Vehicles' system to scan and transfer proof of citizenship documents to local election officials and that individuals renewing their licenses are not necessarily required to provide such documentation.

According to Associated Press reports, approximately one-third of voter registration applications submitted since the beginning of the year are in a "suspense" status until the individuals provide some type of documentation of their citizenship. There are a number of reasons this is not good policy, but the worst of which is that the many of these individuals may have already provided this documentation to the Division of Vehicles when they obtained a driver's license or state issued ID.

The National Voter Registration Act (NVRA), which is often referred to as the "Motor Voter" law, requires an applicant for a driver's license or state-issued ID card to be offered the opportunity to register to vote. It goes on to state that the voter registration process should be easily integrated with the driver's license application process so as not to require the applicant to repeat duplicative information, e.g. name, date of birth, etc., other than the signature. This, of course makes sense. A person should not have to waste time filling out or providing the same information twice. In fact, Congress included this provision because the NVRA was intended to simplify the voter registration process in order to help more people participate in our democracy.

Unfortunately, it has been reported that thousands of Kansans who applied for a driver's license and attempted to register to vote are being held in limbo while being asked to navigate additional hurdles by presenting citizenship documents to their local election official in order to be allowed to vote. This is the exact type of unnecessary duplicative steps that Congress intended to prevent. In addition to requiring voters to take extra steps to register, this process has forced county elections offices to brace for the financial impact.

Douglas County has reported increasing next year's budget by $32,000 (a 10 percent increase compared to 2010, the most recent comparable election year) to address the additional burdens from the proof of citizenship requirement. In this county alone, 434 registrations have been put in suspense so far this year. The budget estimate takes into consideration notifying the applicant that they are in suspense, and more provisional ballots that come with their own expenses. Douglas County is not an anomaly. All local elections offices will need to brace their staff and budgets so they can handle these voters in flux. This story is far from over.

When the SAFE Act was introduced, many newspaper editorials and opponents of the legislation raised concerns that this law would disenfranchise citizens. Despite assurances to the contrary from Secretary Kobach, that is exactly what Kansans are seeing. This is government bureaucracy at its worst and it is preventing citizens from exercising their right to vote while wasting time and resources. It has been said that soon this glitch will be fixed and the system should be seamless. Until then there are 12,000 people and counting that are being disenfranchised by this law.

That is 12,000 Kansans who are being told they must jump through extra hoops in order to exercise their fundamental right to vote. They and all Kansans deserve better.

Fair Elections Legal Network Senior Counsel Ben Hovland contributed to this piece.