Kobach, ACLU battle over proof-of-citizenship law

? Lawyers for Kansas Secretary of State Kris Kobach’s office and the American Civil Liberties Union continue to battle over a lawsuit that threatens to unravel a state law requiring voters to show proof of U.S. citizenship to register to vote.

The latest action in the case came late Friday when the ACLU filed a motion for summary judgment, seeking to declare the so-called “dual registration” system illegal.

Under that system, people who register using a federal form, which does not require proof of citizenship, may only vote in federal races. Voters may only cast ballots in state and local races if they register using the state form, which requires documentary proof of citizenship.

In August, Shawnee County District Judge Frank Theis ruled that the case could go forward, despite Kobach’s argument that none of the plaintiffs in the case had standing to sue. And he strongly suggested that Kobach had no legal authority to implement what he called an “ad hoc” dual registration system.

Doug Bonney, legal director for the ACLU of Kansas, said a favorable ruling for his clients could render the entire proof-of-citizenship law meaningless because people who don’t have such documents, or who don’t want to produce them, can merely register to vote using the federal form, which only requires voters to attest under penalty of perjury that they are U.S. citizens.

“I think that’s the meaning of Judge Theis’ previous order on the scheme that Secretary Kobach has created,” Bonney said.

Also on Friday, though, a new attorney representing Kobach’s office, Garrett Roe, filed a motion that seeks to have the case dismissed on appeal before the district court even decides the case on its merits.

Roe is the fifth attorney to enter an appearance in the case for Kobach’s office. Others have included Kobach himself; Kobach’s chief deputy Eric Rucker; and staff attorneys Thomas Knutzen and Bryan Brown.

According to Kobach’s spokesman Craig McCullah, Roe is a former student of Kobach’s who worked about seven years for the Washington-based Immigration Reform Law Center, where Kobach is also listed as an attorney “of counsel.”

He was hired last fall by Kobach’s office, where his official title is Public Administrator III in the Business Services Division, which handles corporate filings and registers public notaries, McCullah said. According to court records, Roe has a temporary license to practice law in Kansas.

Since January 2013, Kansas has required new voters to show proof of citizenship to register to vote. Since then, more than 30,000 would-be voters have had their registrations placed “in suspense” because they have not provided the required documents.

Federal law, however, requires states to honor registrations that are filled out using a federal form, which does not require proof of citizenship. The U.S. Supreme Court ruled last year, in a case involving Arizona, that states cannot reject registrations made using the federal form, at least for purposes of federal elections.

In response, Kobach instituted the so-called “dual registration” system in which people using the federal form in Kansas could only vote in federal elections.

Bonney said about 100 people were affected by that system in the 2014 elections, including his clients Aaron Belenky of Johnson County and Scott Jones of Douglas County.

Kobach’s office argued that Belenky and Jones lacked standing to sue because the secretary of state’s office had gone to extraordinary lengths to find citizenship documents in order to get them fully registered.

But Theis ruled last month that they still had standing to sue, “notwithstanding their newly, yet involuntarily, acquired status as full and unencumbered voters in the eyes of the Secretary.” He said that because their lawsuit is a test case, they still have standing to assert a claim that their federal form registrations should be given full legal recognition in Kansas.

Additionally, Theis said Kobach enacted the dual registration system without going through the required rules and regulations process, and that the Kansas Legislature had never given him the authority to enact such rules.

Theis has not said when he plans to rule on either of the two latest motions.