New York Times
By John Eligon
February 18, 2016
In a test of Kansas’ wide-ranging voter registration law, a federal lawsuit filed on Thursday challenged a provision that required residents to provide proof of citizenship when they register to vote.
The lawsuit, filed by the American Civil Liberties Union, takes aim at a measure that was pushed through the Republican-led Legislature five years ago by Secretary of State Kris W. Kobach, who has lobbied heavily for measures that he said were needed to prevent noncitizens from voting.
The A.C.L.U., saying that fraud claims were unfounded, brought the class-action suit on behalf of six Kansas residents who said they were left off the voter rolls after registering at the state’s Department of Motor Vehicles.
The plaintiffs argue that the Kansas law violated the National Voter Registration Act of 1993, in particular a provision that requires states to allow people to register to vote when they get a driver’s license. That section says that registrants need only to attest that they are citizens, under the threat of perjury if they lie.
Mr. Kobach said the A.C.L.U. was misinterpreting federal law, which requires only that states accept voter registration applications at the Department of Motor Vehicles — not that those applications have to be confirmed at that time.
“The state has every right to verify that the person is eligible to vote before completing the person’s registration,” said Mr. Kobach, who is a national leader in the push for stricter immigration laws. He was one of the authors of a controversial law passed in Arizona in 2010 that allowed law enforcement officers to question the immigration status of people they believe to be in the country illegally.
Registrations cannot be confirmed during the driver’s license process, he said, because some of the information cannot be immediately verified by motor vehicle officials. For example, he said, they cannot tell if applicants have felony records, or if they were already registered in another county.
Most of the controversy over voter identification laws around the country has focused on those that require voters to present identification when they arrive to vote. Kansas, however, is one of four states requiring proof of citizenship when residents register.
Two of the states, Georgia and Alabama, have yet to implement their laws, said Dale Ho, the director of the A.C.L.U.’s Voting Rights Project. The A.C.L.U. has not seen the same registration issues in the other state, Arizona, as it has in Kansas.
The Supreme Court struck down Arizona’s law in 2013, in a 7-2 ruling in which Justice Antonin Scalia wrote the majority opinion. At the time, Mr. Kobach, a Republican, argued that Kansas’ law was different from Arizona’s because Arizona was rejecting voter registrations that were not accompanied by proof of citizenship. Kansas, on the other hand, would still accept such applications, Mr. Kobach said, but placed them “in suspense” until the proof of citizenship was provided.
Later in 2013, the two states sued the federal government to allow them to set up what was essentially a two-tiered voting system in which their residents could vote in federal elections if they did not have proof of citizenship documents, but not in state races. The states initially won the case when a federal judge in Wichita sided with them, but that decision was later overturned by an appellate court.
The A.C.L.U. also sued Kansas in state court over the two-tiered voting system. Last month, a state judge sided with the A.C.L.U., but Mr. Kobach is appealing the decision.
Since the Kansas law took effect in 2013, more than 35,000 registrations have been in suspense, according to the lawsuit, about 14 percent of registrations filed during that period. More than 44 percent of the people whose application were put in suspense were ages of 18 to 29 and nearly 54 percent were unaffiliated with a party. Mr. Kobach said that there are now fewer than 11,000 applications in suspense. Some of those applications had been approved after further documentation was provided, he said, and others had been thrown out because they had been on file for more than 90 days.
The A.C.L.U. is also challenging Mr. Kobach’s decision to start throwing out registrations that have been in suspense for at least 90 days. About 12,000 have been purged, according to the lawsuit, though Mr. Kobach challenged the accuracy of that figure, saying his office has not calculated that number. Paul Davis, a Democrat and the former State House minority leader who ran an unsuccessful campaign for governor in 2014, filed his own federal lawsuit last year, challenging the purging of the voter rolls. That case is pending.
Mr. Kobach said it was misleading to say that registrations were being purged because the people whose voter applications were in suspense had never officially been registered to vote.
The lawsuit also says that Kansas’ administration of the law was a bureaucratic mess. Some people who had shown proof of citizenship while registering were placed on the suspense list, including three of the plaintiffs, the lawsuit said.
Mr. Kobach challenged that assertion. There were some technical glitches in the early days of the law, but those have long since been resolved, he said.
“The D.M.V. is transferring records to the county election officers in a systematic way and on a regular basis,” he said.
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