Judge: Kansas must count disputed votes; ‘There is no right more precious to a free country’

At left, Kansas Secretary of State Kris Kobach listens and takes note as Shawnee County, Kan., District Judge Larry Hendricks declares that the state must count potentially thousands of votes from people who registered without providing documentation of their U.S. citizenship, Friday, July 29, 2016, in Topeka. At right, Hendricks makes a comment during the hearing.

? A Shawnee County judge issued an order late Friday blocking a new temporary regulation enacted by Secretary of State Kris Kobach that would have limited some voters to casting ballots only in federal races.

Judge Larry D. Hendricks’ decision means an estimated 17,500 people who registered at their motor vehicle office and did not provide documentary proof of U.S. citizenship will be allowed to vote in all races on the Aug. 2 primary ballot, not just federal races.

“It’s beyond dispute that voting is of the most fundamental significance under our constitution,” Hendricks said from the bench. “There is no right more precious to a free country.”

The ruling deals a major blow, at least for now, to Kansas’ controversial proof-of-citizenship law because, if it stands after additional hearings later this year, it will mean anyone can register to vote without showing proof of citizenship just by doing so at a motor vehicle office where federal law says people only need to attest, under penalty of perjury, that they are U.S. citizens.

Kobach himself said during oral arguments that, “If the injunction is granted, it renders the proof of citizenship law nugatory,” meaning it would no longer have any force.

Kansas Secretary of State Kris Kobach listens and takes note as a judge declares in Shawnee County District Court that the state must count potentially thousands of votes from people who registered without providing documentation of their U.S. citizenship, Friday, July 29, 2016, in Topeka. Kobach had directed local election officials to count only their votes in federal races, not state and local ones.

But the temporary injunction affects only the Aug. 2 primary, an election in which some people have already cast ballots, including some of the voters who were told they were only eligible to vote in federal races.

Hendricks said he will hold additional hearings in September to decide whether the order should also apply to the Nov. 8 general elections.

Kobach’s office proposed the new rule earlier this month in response to ruling by a federal court in Kansas City, Kan., which said the proof-of-citizenship law likely violates the federal National Voter Registration Act, also known as the “motor voter” law.

In May, U.S. District Judge Julie Robinson said the state must register voters who applied when they obtained or renewed their driver’s licenses and allow them to vote, at least in federal races. The 10th U.S. Circuit Court of Appeals in Denver later refused to grant a stay of that order while it’s being appealed.

Kobach had argued that the regulation was the only reasonable way to comply with Robinson’s order while at the same time keeping the state’s law intact and preventing non-U.S. citizens from voting in Kansas elections.

Shawnee County, Kan., District Judge Larry Hendricks makes a comment during a hearing on requiring the state to count potentially thousands of votes in state and local elections from people who've registered without providing proof of their U.S. citizenship, Friday, July 29, 2016, in Topeka. Hendricks has ruled that the state is required to count all their votes.

Kobach said his office knows of at least 25 noncitizens who were on the voter rolls in Sedgwick County. Those people were identified when they, or someone in their family, applied to register at their naturalization ceremonies. Based on that number, Kobach estimated there may be as many as 100 noncitizens in Kansas who are currently registered to vote.

But attorneys for the American Civil Liberties Union of Kansas, who filed the case as a class action lawsuit, said that number “pales in comparison” to the 17,500 people, virtually all of whom presumably are citizens, who would be denied the right to cast full ballots under Kobach’s regulation.

They argued that Kobach had no authority under any Kansas statute to establish a “dual” registration system in which some voters may vote only in federal races.

That was based on another Shawnee County court decision in February in which Judge Franklin Theis said Kobach had no authority to only partially count the ballots of voters who registered using a federal mail-in form. But Theis did not issue an order in connection with his decision, in part because Kobach’s office, on its own initiative, had located Kansas birth certificates for the plaintiffs in the case and registered them.

They also argued the regulation violates the Equal Protection Clause of the Kansas Constitution because it sets up two classes of voters who are treated differently solely on the basis of the method they used to register.

Dale Ho, the director of the American Civil Liberties Union's Voting Rights Projects, questions a witness during a court hearing on whether Kansas must count potentially thousands of votes in state and local races from people who've registered without providing proof of their U.S. citizenship, Friday, July 29, 2016, in Topeka.

The ACLU filed the case July 19, one week after Kobach’s regulation was approved by the state’s Rules and Regulations Board.

In a highly unusual move, Judge Hendricks issued his decision orally from the bench only about 30 minutes after listening to two hours of oral arguments and testimony.

“This was something that was done in a very rapid manner,” Hendricks said. “It’s unfortunate that we are there, but that’s where we are.”

Hendricks said he had to rule quickly in order to give county election officers time to instruct poll workers how to handle ballots from those individuals who still are not fully registered.

Bryan Caskey, who heads the Division of Elections in the secretary of state’s office, said he believes voters affected by the decision still will have to cast provisional ballots, which are set aside on election night and not counted until the county’s Board of Canvassers meets the following week. But he said those boards will be instructed to count all of the votes those people cast, not just those for federal races.

Hendricks acknowledged that some of the affected voters have already cast advance ballots, and it’s unknown whether they complied with instructions they were given at the time only to mark their ballot for federal offices.

“There is nothing this court can do for those who complied with the instructions to vote only in federal races, if in fact they complied with those instructions,” Hendricks said. “But those who vote on August 2 are within my ability to help. If they can’t vote due to my finding (upholding) a dual registration system, they will never be able to recast their vote.”

He said the plaintiffs in the case met all five legal criteria for granting a temporary injunction: that they are likely to prevail at trial on the merits of the case; that they would suffer irreparable harm if the injunction were not granted; that there would be no other legal remedies available to the plaintiffs; that the harm to the plaintiffs outweighs whatever harm may be suffered by the other party if the injunction were granted; and that the injunction is not contrary to the public interest.