With advance balloting for the 2016 primaries to begin in less than a month, county election officials throughout Kansas are still unsure about which voters will be allowed to cast ballots in which races.
"The counties have been all talking about this," Douglas County Clerk Jamie Shew said. "I’m ready for all scenarios. If on the day before the election we get an order that tells us one way or another, I can operate either way. I think most counties are preparing for that."
What is complicating the elections this year are three active lawsuits that challenge different aspects of state voting laws that require people to show proof of U.S. citizenship to register to vote.
Since 2013, Kansas has required people to show documentary proof of citizenship. But because there are multiple ways people can register to vote, some voters have registered without being asked for those documents.
Specifically, those include an estimated 18,000 people who registered at a motor vehicle office when they obtained or renewed their driver's license under the federal "motor voter" law. Those people had their registrations placed "in suspense" and have not been allowed to vote unless they followed up by sending in the required citizenship proof.
Another group includes people who registered using a federal mail-in form which, until recently, was uniform across the United States and did not ask for proof of citizenship.
During the 2014 elections, Kansas Secretary of State Kris Kobach, who championed the citizenship law, issued a policy saying those voters were allowed to cast ballots in federal races only, but were not allowed to vote in state or local elections.
Shew said there are about 800 voters in Douglas County who may be allowed to vote only in federal races this year.
The Lawrence Journal-World recently filed a request under the Kansas Open Records Act for the list of all voters whose registrations are being held in suspense, including information about why their registrations are deemed incomplete and the method by which they attempted to register.
Kobach's office has denied that request, citing provisions of the federal "motor voter" law as well as protective orders issued by the federal judge in Kansas City sealing certain records that were entered as evidence in that case.
Fish vs. Kobach Injunction ( .PDF )
Belenky vs. Kobach ( .PDF )
The Journal-World has appealed Kobach's denial of access to the records to the Shawnee County district attorney's office, requesting that the office investigate what the newspaper alleges to be a violation of the Kansas Open Records Act.
But two recent court decisions have created confusion over the status of those voters.
First, a federal judge in Kansas City, Kan., issued an order in May saying the state had to register the 18,000 "motor voter" applicants and allow them to vote, at least in federal elections.
Then last week, a Shawnee County judge finalized an earlier ruling that said Kansas Secretary of State Kris Kobach has no legal authority to conduct a "dual" election system in which some voters may vote only in federal races while others are allowed to vote in all races.
But that ruling from Judge Franklin Theis did not include an order or injunction preventing Kobach from conducting such an election. It was only a "declaratory" judgment in favor of the two plaintiffs in that case who challenged Kobach's policy as it affected them individually.
"What is up in the air at this moment is what is the effect of that ruling," Shew said. "I have forwarded it to our county counselors to review and provide some guidance at our level."
Shew said he's seeking advice from the county's attorneys because, as yet, Kobach's office has not said anything to county election officers about how they should respond.
Doug Bonney, legal director for the American Civil Liberties Union of Kansas, which filed the Shawnee County lawsuit, said the cloudy legal situation threatens to make the upcoming elections difficult to administer.
"The problem is that it’s creating out of whole cloth this idea of a dual or bifurcated election," he said. "And that’s Kobach. He doesn’t want to accept the legal ruling that he has no authority to do this. If there are administrative problems that arise with election authorities, it’s Kobach’s responsibility. He’s the one who created this dual election system."
Kobach's spokesman, Craig McCullah, said Kobach plans to appeal Theis' decision to the Kansas Court of Appeals.
McCullah did not respond to questions about how the decision affects voters who used the old federal forms that didn't ask for proof of citizenship. But he did say that going forward, the issue is moot because the U.S. Election Assistance Commission has since provided Kansas and two other states, Georgia and Alabama, with amended federal forms that do ask for citizenship documentation.
That action by the EAC was taken unilaterally by its executive director, Brian Newby, a close political associate of Kobach's and a former Johnson County election commissioner who agreed to provide those amended forms two weeks after Judge Theis issued his initial ruling in January.
But that action is now the subject of a third lawsuit filed by state and national chapters of the League of Women Voters who argue that Newby had no authority to make such a decision without a vote of the three-member commission itself.
That case is now pending in a federal district court in the District of Columbia, where Judge Richard J. Leon has not acted on the plaintiffs' motion for an order blocking use of the amended federal form.
For local officials like Douglas County's Shew, the legal entanglements threaten to make this year's elections more complicated than any in modern memory. But he said county officials are doing their best to prepare for it.
"In the last week, there have been lots of discussions among all of us in the counties," he said. "Our office has everything ready to go so that no matter what we’re instructed, we’ll be ready to go that route."