photo by: Peter Hancock

Bryan Caskey, director of elections for the Kansas Secretary of State's office, and Sen. Vicki Schmidt, R-Topeka, debate a new regulation that will require some voters in the upcoming elections who have not yet shown proof of U.S. citizenship to cast provisional ballots so they can only vote in federal races.

Topeka ? A state board on Tuesday approved a temporary regulation that will limit the voting rights of an estimated 17,000 Kansans, saying they can cast ballots only in federal races, not in state or local elections.

The action by the Kansas Rules and Regulations Board — which one opponent called “appalling” — affects people who attempted to register at a local motor vehicle office but did not provide proof of U.S. citizenship.

Kansas Secretary of State Kris Kobach requested the temporary rule in response to a temporary injunction issued in May by U.S. District Judge Julie Robinson, who said the state cannot enforce its proof of citizenship law on people who registered under provisions of the National Voter Registration Act, commonly known as the “motor voter” law.

The temporary rule means that voters who fall into that category will be given a full ballot, but their ballots will be set aside as “provisional” ballots and will be counted after Election Day when their county Board of Canvassers meets, and that board will count only votes cast in federal races.

For voters in Lawrence, that means Democratic voters in that category will be allowed to vote only in the primary for U.S. Senate between Monique Singh and Patrick Wiesner. There are no Republican primaries in federal races in which Lawrence-area voters can vote.

There is a Republican primary in the 3rd Congressional District between U.S. Rep. Kevin Yoder and challenger Greg Goode. There is also a three-way Democratic primary in that district between Jay Sidie, Nathaniel W. McLaughlin and Reggie Marselus.

And there is a Republican primary in the 1st Congressional District between U.S. Rep. Tim Huelskamp and challenger Roger Marshall.

The Rules and Regulations Board is made up of representatives from the offices of the Secretary of State, Attorney General and Department of Administration. It also includes the chair and vice chair of the Legislature’s Joint Committee on Administrative Rules and Regulations.

The board adopted the rule on the last day in which people can register in time for the upcoming Aug. 2 primary and one day before advance voting begins in those races. It will be in force for 120 days, until Nov. 8, which is also the day of the general election. It will become null and void if a federal appeals court later overturns Judge Robinson’s ruling.

Meanwhile, a state judge in Topeka, Franklin Theis, has ruled that the secretary of state has no statutory authority to conduct such a dual election system, in which different classes of voters are treated differently depending on the method they used to register. He also said that forcing one group of voters to cast provisional ballots violates their right to cast a secret ballot.

But Theis did not issue an injunction to block Kobach’s office from conducting a bifurcated election.

Kobach’s office has appealed Theis’ ruling to the Kansas Court of Appeals. It has also appealed Robinson’s decision to the 10th U.S. Circuit Court of Appeals, which has scheduled a hearing in late August, after the primaries.

Kobach did not attend Tuesday’s meeting himself, but an attorney from his office, Bryan Brown, said the temporary rule was needed to enforce the state’s proof of citizenship law, officially known as the Secure and Fair Elections, or SAFE, Act, at least as it applies to state elections.

“The Legislature passed the SAFE Act,” he said. “The secretary of state, as a constitutional officer, is merely attempting to enact it, per the duties put upon him by the Constitution of the State of Kansas.”

State law allows the adoption of temporary rules and regulations in special circumstances when there isn’t enough time to go through the full process of adopting permanent regulations, which typically takes about a year and involves opportunity for public comment and review by the Legislature’s joint committee.

Sen. Vicki Schmidt, R-Topeka, questioned why Kobach’s office didn’t come to the Legislature during the Sine Die session June 1, or during the special session June 23-24.

But Bryan Caskey, director of elections in Kobach’s office, said that was because the federal case was under appeal, and Kobach was asking the 10th Circuit to put a hold on Judge Robinson’s order pending an appeal of the full district court decision.

photo by: Peter Hancock

Bryan Caskey, director of elections for the Kansas Secretary of State's office, and Sen. Vicki Schmidt, R-Topeka, debate a new regulation that will require some voters in the upcoming elections who have not yet shown proof of U.S. citizenship to cast provisional ballots so they can only vote in federal races.

The 10th Circuit denied that request on June 10. Oral arguments on the appeal are now scheduled for Aug. 23.

Schmidt abstained from voting on the temporary rule, saying she had a conflict of interest because she is involved in a contested primary race, and the rule could affect the outcome of that race.

Rep. Sharon Schwartz, R-Washington, who is vice chair of the Rules and Regulations Committee but is not running for re-election this year, voted in favor of the rule, saying, “I believe it was the intent of the Legislature that voters should be citizens of the state of Kansas.”

Mark Johnson, who teaches election law at Kansas University and is one of the attorneys representing the plaintiffs in the ongoing federal lawsuit, said there was no justification for enacting a temporary rule, and he complained that the text of the rule was not even made public until shortly before the meeting.

“There is no emergency here,” he said. “Nothing has happened in the last few days that requires this rule to be passed today.”

photo by: Peter Hancock

Mark Johnson, an attorney representing plaintiffs in a federal lawsuit challenging the state's proof of citizenship law, tells the Kansas Rules and Regulations Board that a new rule that says an estimated 17,000 voters to cast ballots only in federal races will undermine the integrity of the upcoming primary elections.

Johnson also said the rule will cause confusion at the polls on Election Day and that it could damage the integrity of the entire election process this year.

“Voters are not going to understand why their votes aren’t going to be counted,” he said. “If the county election judges try to explain it to them, inevitably many of them will mess up the explanation, so voters will come to the polls not knowing if they can vote. If they vote, they’re not going to know who they’re voting for. If they find out later that their votes didn’t count, that’s certainly going to undermine credibility in the election process.”

State Rep. Jim Ward, D-Wichita, called the process “appalling” and said, “I cannot believe the secretary of state would pull this kind of chicanery,”

“It is not a coincidence that the 120th day will be the general elections,” Ward said. “So this temporary rule will control not only the primaries, where there are at least a dozen races in highly competitive districts, where a handful of votes will determine the future of this state, being controlled by a regulation that’s in direct violation to court orders.”

Also speaking against the rule was Marge Ahrens, co-president of the League of Women Voters of Kansas, who said her organization has no way of knowing which voters are on the list so the group can contact them and let them know how they will be affected.

“We are concerned that every eligible citizen in Kansas have easy access to the vote,” she said. “And we do not know how the individuals will be reached beyond our Facebook and website where we list those in suspense. We do not even know the names of the persons from the DMV list who will only be allowed to vote in federal elections.”

Kobach’s office recently denied an open records request by the Journal-World for the database of all voters whose registrations are in suspense, including information showing the method by which they attempted to register. The Journal-World has lodged a complaint with the Shawnee County District Attorney’s office, alleging a violation of the Kansas Open Records Act, but that complaint has not yet been resolved.