A district state judge declared Friday that Kansas Secretary of State Kris Kobach has overstepped his legal authority by implementing a dual voter registration system.
The federal voter registration form only requires a sworn statement, under penalty of perjury, that citizens who are registering are U.S. citizens. Kobach introduced a requirement that residents of Kansas seeking to vote must produce documentation of citizenship, like a passport or birth certificate. The requirement took effect in 2013.
In his ruling last week, Judge Franklin Theis wrote, “The Secretary is not empowered to determine or declare the method of registration or create a method of 'partial registration' only.”
“In Kansas, a person is either registered to vote or he or she is not," he continued. "By current Kansas law, registration, hence, the right to vote, is not tied to the method of registration.”
After introducing the more stringent procedure for registration, Kobach lost his suit to compel the federal election officials to change the federal forms to require citizenship documentation. The Supreme Court ruled against him in 2013, saying that states cannot impose a proof-of-citizenship documentation requirement on federal forms.
Kobach then attempted to circumvent the Supreme Court's ruling by arguing that any Kansan who registered using the federal form could only vote in federal elections. To exploit the court's ruling, he created a two-tier voting system where voters who registered using the federal forms could vote for offices like the presidency and U.S. Congress seats, but were barred from voting for local and state offices. If the voter were to cast a local vote on the federal ballot, those votes would go uncounted.
Kobach has justified his state's proof-of-citizenship requirement by arguing that it protects against fraud, even though cases of in-person impersonation fraud, which such a requirement is meant to guard against, are exceedingly rare.
Backed by the American Civil Liberties Union of Kansas, Aaron Belenky and Scott Jones challenged the validity of the new voter registration requirement, on the grounds that it violated the state constitution.
“There’s no legal authority that allows them to treat federal form users as second-class citizens in terms of the ballots that will be counted or how they are registered,” Doug Bonney, chief counsel for the state's ACLU chapter, told The Huffington Post on Tuesday.
“All of our argument was based on state law,” Bonney continued. “There is no state statutory authority to allow the secretary of state to have separate voter registrations for federal form users and others."
Bonney noted that Kobach's staff found the plaintiffs' citizenship documents from the Department of Motor Vehicles and registered them in an attempt to get the case dismissed, by arguing that they lacked standing to sue since they had been registered. (Kobach has used this tactic in other lawsuits over the proof-of-citizenship requirement.) Theis rejected this attempt, calling it a “gratuitous and unsolicited act.”
In response to the ruling, Kobach said that he plans to appeal.