Topeka Secretary of State Kris Kobach was both the defendant and his own attorney Wednesday in a lawsuit now before a federal appeals court over how Kansas deals with small political parties.
He argued the state's case before the 10th U.S. Circuit Court of Appeals in Denver. The Constitution Party of Kansas wants to regain its status as a recognized political party and is challenging the refusal of the secretary of state's office to allow people to affiliate with the party when registering to vote.
As Kansas' top elections official, Kobach is known nationally for advising officials elsewhere about cracking down on illegal immigration and helped draft tough immigration laws in Alabama and Arizona. He's argued cases, mostly about immigration, before several federal appeals courts and is a former University of Missouri-Kansas City law professor. He's taught courses on constitutional law and been a clerk for a now-retired 10th Circuit judge.
"I do have a right to represent myself, and in this case, I think it makes sense because of my expertise in this area," Kobach said Wednesday in a telephone interview after a three-judge panel heard the case.
Kobach said he and his staff can't find another instance in which a sitting secretary of state has argued a case before a federal appeals court.
His decision to represent the state irritates some critics who already accuse him of spending too much time outside Kansas. Kobach campaigned this week in South Carolina for Republican presidential candidate Mitt Romney.
Kobach also is the architect of a new state law requiring voters to show photo identification at the polls, which took effect Jan. 1.
"We need to leave the lawyering for the state to the attorney general's office," said Kansas House Minority Leader Paul Davis, a Lawrence Democrat. "I think that the most important thing that he can be doing right now is going out, around the state, and talking to people about the new voter ID law and educating them about what the implications of that are going to be."
However, Daniel Treuden, an attorney representing the Constitution Party, said in an email message Tuesday evening, "I have no problem with Mr. Kobach arguing the case himself."
The state has four recognized political parties: Democratic, Republican, Libertarian and Reform. People can affiliate with one when they register to vote, and each party, after a primary or a convention, can place nominees on the general election ballot.
To gain recognition, a party must gather signatures on petitions from at least 16,776 registered voters, or the number equal to 2 percent of the votes cast in the last general election for governor. A party loses recognition if not one of its candidates for statewide office wins at least 1 percent of the vote.
"It's very reasonable," Kobach said.
The Constitution Party argues that the state's practice of not allowing potential voters to affiliate with unrecognized parties violates both the group's and voters' right to free speech and free association. Instead, the state lists such voters as unaffiliated, and Constitution Party officials have argued that such a practice makes it harder for the party to conduct a petition drive to gain recognition.
Treuden said that under a past 10th Circuit precedent, the state should be tracking voter affiliations with even unrecognized parties, if they have officers and an existing organization and have shown "a modicum of public support."
The national party's platform on its web site says the party opposes abortion and illegal immigration and supports states' rights, gun rights and limited government.
Kobach is the only defendant in the lawsuit because of his victory in the 2010 race for secretary of state over Democratic incumbent Chris Biggs. The lawsuit was filed against Biggs in U.S. District Court in Kansas in April 2010.
The party also challenged a Kansas law that prohibits people from outside the state from circulating petitions, and the state agreed to stop enforcing it. But in April 2011, U.S. District Judge Sam Crow ruled in the state's favor over the challenge on how the state deals with voter registrations.