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Judges Challenge Kansas’ Attempt To Keep 50,000 People From Voting

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. CREDIT: AP Photo/David Zalubowski
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. CREDIT: AP Photo/David Zalubowski

Kansas argued this week before the 10th U.S. Circuit Court of Appeals in Denver that they should have the right to demand proof of citizenship from people registering to vote at the DMV. Civil rights advocates say the policy violates federal law and could suppress up to 50,000 otherwise eligible voters.

The hearing is the latest step in Republican Secretary of State Kris Kobach’s multi-year crusade to implement voting restrictions he says will prevent immigrants from illegally voting in U.S. elections — despite courts finding no compelling evidence that this is a real threat. In fact only three non-citizens have voted in Kansas in the past two decades, out of tens of millions of ballots cast.

In May, U.S. District Court Judge Julie Robinson ordered Kansas to register the tens of thousands of purged voters, saying “the risk of disenfranchising thousands of qualified voters” outweighs the state’s unfounded fear of voter fraud. Instead, Kansas appealed the ruling.

In a heated back-and-forth with the three judges, Kobach argued Tuesday that Kansas has the right to put additional burdens on voters registering at the DMV. At least two judges did not seem to buy his reasoning.

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“Nowhere in the [National Voter Registration Act] is proof of citizenship even mentioned. Nowhere at all,” Kobach said. “There is nothing in the text that says you cannot ask for proof of citizenship.”

“And there’s nothing that says the state can,” countered Judge Carolyn B. McHugh. “But there is something that says the state may only ask for the minimum necessary information.”

“We don’t need to be authorized by the federal government on what we can ask for,” he snapped. “the states have the sole authority for establishing qualifications for elections.”

Judge Jerome Holmes cut him off, and told him that was a position that has been rejected by other courts. Judge McHugh also expressed skepticism that states have the right to “make [voters] bring in a truckload of documents.” Flustered, Kobach replied that the state eases the process by allowing voters to fax, email or text a copy of their birth certificate to the DMV.

But that is not so easy for Kansas voters like Wayne Fish, the lead plaintiff in the case. Born on a military base in Illinois that no longer exists, Fish is not able to track down a copy of his birth certificate. He has had a Kansas drivers licence for many years, and when he went to renew it in 2014, he decided to register to vote. He was not asked for his birth certificate. When he went to the polls to vote months later, he was told he was not registered and turned away.

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Dale Ho, attorney who argued the case before the court on behalf of Fish, told ThinkProgress that the National Voter Registration Act “was designed to be one process, so people could use the same documents as applying for a drivers license. Kansas has completely undermined that.”

If the 10th Circuit does not act between now and November, or if they affirm the lower court’s finding that Kansas violated federal law, the 18,000-to-50,000 voters on the purge list will be able to vote in this fall’s presidential election. If the court rules for Kansas and there is no time for an appeal before Election Day, those voters will be barred from participation.

The outcome of the case could also impact voters in Georgia and Alabama, which are attempting to implement similar voter registration policies.