It’s hard to share Kansas Secretary of State Kris Kobach’s public confidence that the Kansas voter registration law can withstand the legal challenges that caused the Arizona law to be thrown out in a 7-2 ruling by the U.S. Supreme Court.
Kobach claims that, because he was aware of challenges to the Arizona law, he was careful to craft the Kansas law to avoid the same problems. Maybe he believes that, but when put up against the language of the Supreme Court decision, his reasoning seems seriously flawed.
The case Kobach makes sounds a little like President Bill Clinton’s famous evasion when he parsed his answer about his relationship with a White House intern by arguing that “It depends on what the meaning of the word ‘is’ is.” The Supreme Court based its ruling on the federal Voting Rights Act, which requires all states to “accept and use” a federal voter registration form that asks applicants whether they are citizens but doesn’t require them to provide any proof of that.
Kobach contends that, unlike the Arizona law, Kansas conforms to the federal law because it “accepts” the federal form; that is, the state takes the form, but then it places it “in suspense” until the person trying to register provides proof of citizenship. If that proof is never provided, the registration is never completed. In what universe does that fulfill the requirement to “accept and use” the federal form? Just because the state takes a form and sticks it in a desk drawer doesn’t mean it is allowing people to use that form to register to vote.
That argument, even coming from a former law professor like Kobach, isn’t likely to pass muster with Justice Antonin Scalia, who wrote the majority opinion for the Supreme Court. “Reading ‘accept’ merely to denote willing receipt seems out of place in the context of an official mandate to accept and use something for a given purpose,” Scalia wrote. His meaning seems clear enough.
A handful of other states with similar laws — Alabama, Georgia and Tennessee — are reviewing their laws in light of this week’s Supreme Court ruling. Kansas Sen. Anthony Hensley of Topeka has taken the initial step of asking Kansas Attorney General Derek Schmidt to issue a legal opinion on whether the state’s voter registration law still is valid. The America Civil Liberties Union, which fought against the Arizona voter registration law, also is looking at the Kansas law and considering its next steps — perhaps depending on what Schmidt determines.
The proof of citizenship provision in the Kansas voter registration has spurred considerable controversy in Kansas. Kobach and other supporters of the law claim it is necessary to prevent voter fraud, but many Kansans see the provision as an effort to solve a problem that doesn’t exist. Although he has been unable to provide any proof of voter fraud, Kobach continues to say it does exist.
Now, despite clear legal evidence to the contrary, Kobach contends the Kansas law requiring proof of citizenship is constitutional. How much money is the state of Kansas willing to spend to try to help him win that argument if and when this question goes to court?