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Courts Will Rule Whether Thousands of Kansas Residents Can Vote

Editor's Note: This report is part of a project on voting rights in America produced by the Carnegie-Knight News21 program and first appeared here.

TOPEKA, Kan. - For years, Kris Kobach has fought against illegal immigration. He helped write two of the nation's most strict immigration laws in Arizona and Alabama and helped develop a now-defunct national immigration security system.

Now Kobach, the Republican secretary of state for Kansas, is embroiled in court fights over his repeated attempts to require Kansans to provide proof of citizenship to register to vote. Although he has repeatedly lost in court, one case that remains open will determine whether thousands of Kansans will be able to vote in November's local and state elections.

Image: Kris Kobach
Kansas Secretary of State Kris Kobach responds to questions outside the 10th U.S. Circuit Court of Appeals after delivering an argument in the legal fight over how the state of Kansas enforces its proof-of-citizenship requirement for voters who register at motor vehicle offices on Aug. 23 in Denver. David Zalubowski / AP

The saga began in 2011 when Kansas passed the Secure and Fair Elections Act. The law, written by Kobach, requires those registering to vote after Jan. 1, 2013, to provide documentary proof of U.S. citizenship, such as a birth certificate or a passport. Kansas is the only state trying to enforce a proof of citizenship requirement for voter registration, although Kobach wants the rest of the country to follow.

"The (SAFE Act) has been a model for other states," he told News21. "The idea of proving citizenship has been around for a while, it's been needed for a while, and the people of Kansas support it."

The act also required voters registering after Jan. 1, 2012, to submit photo identification when registering to vote and to show a photo ID when voting in person. While photo ID laws have been overturned in some states as discriminatory, challenges to the Kansas law have been more focused on its proof of citizenship requirement.

Voting rights advocacy groups that have fought Kansas' citizenship requirement argue that it would be too much of a burden for people who don't have access to the necessary documents. Kobach says the law was intended to prevent voter fraud, including by non-U.S. citizens.

But Kobach denies any connection between his concern about illegal immigration and his apprehension about voter fraud.

The Kansas Capitol in Topeka was built in 1903 and serves as the home of the Kansas government. @Imranpalash / News21.com

"That's been widely misreported in the press," he told News21. "Reporters say 'Oh, Kobach deals on this topic with illegal immigration, here he is talking about voting, he must be worried about illegal aliens voting.' Actually, it's more frequently the issue that people who are noncitizens who are legally here will vote."

For Kansas' Aug. 2 primary election, a state judge overruled Kobach and allowed people who registered to vote in person at a department of motor vehicles location without providing proof of citizenship to vote in local, state and federal elections. The judge will not decide until Sept. 21 whether these more than 17,000 Kansans will be able to vote in local and state elections in November.

Kobach has history fighting illegal immigration

Before Kobach was elected as secretary of state in 2010, he spent much of his career as a lawyer, law professor and state official combating illegal immigration.

When he worked for then-U.S. Attorney General John Ashcroft, Kobach led a team that designed and implemented the now-defunct National Security Entry-Exit Registration System. It was a temporary program initiated in 2002 after the Sept. 11, 2001, terrorist attacks to record the arrival, stay and departure of people from primarily Middle Eastern and North African countries. The American Civil Liberties Union called it discriminatory, and the Department of Homeland Security indefinitely suspended the program in 2011.

Kobach also helped write Arizona's Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. Signed into law in 2010, it requires police to verify the immigration status of a detained individual during an arrest or lawful stop if there is "reasonable suspicion" that the person is not legally in the country.

But in 2012, U.S. Supreme Court ruled that immigrants no longer must carry their immigration papers and that police are prohibited from arresting suspected illegal immigrants without a warrant. The court also struck down a provision in the Arizona law that made seeking or having a job as an illegal immigrant a state criminal offense. However, the Supreme Court upheld the law's "reasonable suspicion" provision.

Kobach also co-wrote Alabama's House Bill 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, which was signed into law in 2011. It had essentially the same "reasonable suspicion" provision as Arizona SB 1070, but also required individuals to provide proof of citizenship when registering to vote, although the state is not currently enforcing this provision.

Currently, Kobach is of counsel for the Immigration Reform Law Institute, an advocacy law firm with a mission to protect Americans from the "harms and challenges posed by mass immigration," according to its website. It is a supporting organization of the Federation for American Immigration Reform. The institute calls on Kobach's law office, Kobach Law LLC, for counsel on a case-by-case basis, according to Dave Ray, a spokesman for the federation.

Kobach also wrote two pages of anti-illegal-immigration policy in the 2016 GOP platform, according to media reports. He has said he supports Republican presidential candidate Donald Trump's plan to build a wall across the southern border of the U.S. The party platform also encourages all states to require documentary proof of citizenship for voter registration.

"On top of not doing his current job, he has been trying to focus on nationwide immigration policy," said Brandon Johnson, the executive director of a Wichita-based nonprofit called Community Operations Recovery Empowerment. "He has been instrumental in crafting the Republican Party's platform at their convention, and he continues to do those types of things."

Ann Mah, a Democratic representative for Kansas District 53, said Kobach's immigration and election philosophies are linked. "He had a lot of racial overtones when he pitched (the SAFE Act)," Mah told News21. "He implied and directly said several times that illegal immigrants are voting in Kansas and they're stealing your elections."

However, Kobach has not convicted any non-U.S. citizens of voter fraud in Kansas with prosecutorial powers he gained last year.

"I did not have one single person, in nine months of registering voters, attempt to register who was not a legal citizen of the United States," said Carri New, a Wichitan who has run voter registration drives in Kansas and used to work for the Bernie Sanders campaign. "Kobach is on a witch hunt, he's making our life difficult, and I wish he would stop."

Kobach: Voter fraud 'amazingly frequent'

Altogether, since Kansas Gov. Sam Brownback gave Kobach the authority to prosecute voter fraud as secretary of state in July 2015, he has secured just four convictions. All four defendants were legal citizens of the U.S.

Steven Gaedtke, a Vietnam War veteran, pleaded guilty Dec. 3, 2015, to voting in the same election cycle in both Kansas and Arkansas. He was fined $500 plus court costs.

Randall Kilian was found guilty April 21 of voting in the same election cycle in both Kansas and Colorado. A news release from the Kansas secretary of state said Kilian's act was part of a scheme to double vote in the two states. Kilian was ordered to pay a $2,500 fine.

A week later, Michael Hannum pleaded guilty to voting in the same election cycle in both Kansas and Nebraska. He was fined a total of $5,500.

On May 4, Ron Weems pleaded guilty to voting in the same election cycle in both Kansas and Colorado. He was also fined $5,500.

The SAFE Act does not have a provision to prevent double voting across state lines. However, Kobach told News21 that double voting is "amazingly frequent" across the country.

Jessica Larson is a 21-year-old University of Kansas student from Nebraska. She has failed to register to vote in Kansas twice because she has twice failed to provide documentary proof of citizenship. Andrew Clark

"The reality of the situation is that (the SAFE Act) is based largely on anecdotal evidence," said Djuan Wash, the communications director for Sunflower Community Action, a Wichita-based advocacy organization.

But Clay Barker, the executive director of the Kansas GOP, said in an email that just because evidence of fraud is scarce, doesn't mean fraud doesn't exist.

"It's hard to know how often (voter fraud) occurs," Barker said. "It's one of those crimes where the idea is to never get caught, so no one ever knows it happened. That's the idea. So if you do it right, no one will even realize it happened."

Kansas uses the Interstate Voter Registration Crosscheck program to monitor those who are registered to vote in more than one U.S. state. The program, run out of the Kansas secretary of state's office, has 30 participating states. It compares voter registration data from the 30 participants and matches double-registrants by first name, last name, birth date and the last four digits of Social Security numbers, if those numbers are available. All matches are flagged as people who could potentially vote in the same election cycle in two states.

"The millions of votes that have been sifted through have not found any that were people that were undocumented immigrants, which is what the premise of (the SAFE Act) is, like (Arizona) SB 1070 before it," Wash said. "It was all built upon a racist, xenophobic narrative."

Kansas law faces legal challenges

"I knew when we passed (the SAFE Act) back in 2011 there would be three phases: legislation, implementation and litigation," Kobach told News21. "It was almost a given that the ACLU and/or the League of Women Voters would try to stop our law because they lost in the Legislature and they are both dead set against these kinds of protections for the integrity of our elections. And so I fully expected them to sue."

But he told News21 that he didn't expect this many lawsuits at the same time.

In September 2013, the ACLU sued Kobach, contending that the proof of citizenship requirement split Kansas voters into two "separate and unequal classes." In June 2013, the U.S. Supreme Court ruled that states could not require proof of citizenship for people who register using the U.S. Election Assistance Commission's national mail voter registration form. Kobach was allowing those who registered in Kansas with proof of citizenship to vote in all elections, but prohibited those who registered with the EAC form - without proof of citizenship - from voting in state and local elections in Kansas.

Michael Panek is a 21-year-old University of Kansas student from Wichita, Kansas. He attempted to register to vote in Douglas County, Kansas, but could not because he didn't provide documentary proof of citizenship. Andrew Clark

This January, Shawnee County District Judge Franklin Theis ruled that Kobach doesn't have the authority to ban those who register with the EAC form from voting in local and state elections.

Meanwhile, Brian Newby, the former Johnson County, Kansas, election commissioner under Kobach, was appointed executive director of the EAC in November 2015. On Jan. 29, he sent letters to the secretaries of state of Kansas, Georgia and Alabama allowing them to require proof of citizenship for those registering with the EAC form.

After Kobach received Newby's letter, he asked Theis to reconsider his ruling. However, Theis stood by his decision.

The League of Women Voters sued Newby in February over the modification of the three states' EAC forms. On June 29, a U.S. district judge ruled that registrants using those states' EAC forms must in fact provide proof of citizenship. The league plans to appeal the judge's decision. Georgia and Alabama are not enforcing any proof of citizenship requirement in this election cycle because they don't have the time or money to do so, state officials told News21.

Also in February, the ACLU again sued Kobach, about a month after Theis' original ruling, arguing that the state's proof of citizenship requirement violates the National Voter Registration Act. It sought an order requiring Kansas to register voters who attempted to register at a department of motor vehicles location without proof of citizenship.

Federal Judge Julie Robinson ordered Kobach to register the voters affected by the proof of citizenship requirement. In response, Kobach filed an appeal to the 10th Circuit Court of Appeals in Denver, which upheld Robinson's ruling in June. Kobach registered the voters, but made them eligible only for federal elections.

A temporary Kansas rule entered by Kobach on July 12 ordered election officials to give voters who registered at the DMV but not provided proof of citizenship a provisional ballot. The election officials were instructed to strike the provisional ballot votes for local and state races.

So the ACLU sued Kobach on July 19, again arguing that Kobach had created a two-tiered voter registration system in which voters are split into "separate and unequal classes."

On July 29, Shawnee County District Judge Larry Hendricks ordered that all registrants who had not provided proof of citizenship be allowed to cast local, state and federal ballots in Kansas' Aug. 2 primary election. The DMV registrants who had not provided proof of citizenship were still given provisional ballots, but all of their votes for local, state and federal elections were counted, according to Tabitha Lehman, the Sedgwick County election commissioner.

Hendricks will decide Sept. 21 about what should happen in the November election.

"There are so many changes so often," Johnson, with the Community Operations Recovery Empowerment, said of the frequent judicial rulings. "(Kobach) keeps trying to push this two-tiered thing due to his fear of undocumented immigrants voting … (but) even the documented people are confused now."

Voters face struggles when registering

Jessica Larson, a 21-year-old University of Kansas student studying journalism, and women, gender and sexuality studies, has attempted to register to vote in Kansas twice. She failed both times.

Larson is from Nebraska, and she has failed to provide proof of citizenship when registering to vote because her birth certificate and passport are at her parents' house. "It's really hard to get that together," she said. "It seems like a lot."

If a person attempts to register to vote in Kansas and doesn't provide proof of citizenship, photo ID or fulfill other registration requirements, that person is placed on a "suspense list." After being placed on the list, they have 90 days to finish their registration process. If their registrations aren't completed after that time, they are purged from the list.

As of July 12, 26,228 people were on the Kansas suspense list, more than 1.5 percent of the state's registered voters. More than half of the people on the list aren't affiliated with a political party. More than 57 percent of the people on the list are also millennials, or people born between 1981 and 1998.

Michael Panek, a 21-year-old KU student from Wichita studying athletic training and pre-physical therapy, was on the suspense list as of July 12 because he also did not provide proof of citizenship. His documents are also at his parents' home.

"If you're willing to go out and vote, you should be allowed to, even if you're in this country not as a citizen," Panek said. "If you're gonna go out and make that effort, you should be allowed to."

Critics of the proof of citizenship requirement say it disenfranchises more than it prevents voter fraud. But Bryan Griffin, a 48-year-old registered voter in Sedgwick County, Kansas, said he's never had trouble with the state's proof of citizenship requirement. He also said if a person is not responsible enough to carry a photo ID, then that person isn't responsible enough to vote.

"I don't even know why this is debated," he said. "(I've) wondered why one did not have to have a form of ID to vote 20-some years before the subject was ever brought up by lawmakers."

ACLU representative: System a 'massive mess'

"Kansas has voting laws that are absolutely unique," said Doug Bonney, the legal director of the ACLU Foundation of Kansas. "No other state has done what Kansas has done, and it has caused a massive mess."

Yet Kobach told News21 he will continue to push for Kansas and other states to enforce proof of citizenship. "Kansas is doing a service to the rest of the country," he said, "by not only implementing these laws, not only producing a model for other states to look at, but also fighting the legal battles that the people who dislike photo ID and dislike proof of citizenship, want to fight."