Wichita Kansas Secretary of State Kris Kobach is planning to use provisional ballots during the upcoming elections and then throw out all of the votes for state and local races cast by the thousands of voters who register to vote at motor vehicle offices without providing proof of citizenship.
An email sent from Kobach's office to county election officials outlines the state's proposed plans for implementing a two-tiered election system in the wake of a federal court order requiring Kansas to allow these voters to cast ballots at least in the federal races.
The email sent by Election Director Bryan Caskey tells local election officials that the secretary of state has not approved a shorter "federal only" ballot.
Instead, Kobach wants to institute a "partial provisional" process that allows election officials to go back into those provisional ballots and throw out any votes cast in state and local races and count only votes cast for president and U.S. Senate and House.
The state had a similar process in place in the 2014 elections in which a few hundred voters who registered with a federal form were affected. But implementing it in the upcoming elections is estimated to affect as many as 50,000 who registered to vote when they got their driver's licenses without providing the citizenship documentation.
Kobach's move comes despite Shawnee County District Judge Franklin Theis finding in January that "no authority exists in the Kansas Secretary of State to encumber the voting process" as he did in the 2014 elections.
Kobach's planned response to a federal court order requiring him to register motor voter applicants "flies in the face" of the decision by Theis, who ruled Kansas law does not allow Kobach to implement a bifurcated voter registration system, said Micah Kubic, executive director for the American Civil Liberties Union of Kansas.
The ACLU contends voters covered by the federal court order should be added to the voter registration rolls and allowed to vote using a regular ballot.
Kobach did not immediately respond to a call to his office seeking comment.
Kobach has championed the documentation requirement as a way to prevent non-citizens from voting, particularly immigrants in the U.S. illegally. Critics contend the requirement suppresses turnout.
Kansas law has required voters to provide proof of citizenship since January 2013.
"It is a bad law, and we as citizens of Kansas do better to recognize it as bad law. It is not something that can be tweaked," said Marge Ahrens, co-president of the League of Women Voters of Kansas.
"It is not manageable, it is written for no reason. These were laws that were designed for a problem that does not exist and still does not exist," she said.
U.S. District Judge Julie Robinson noted in her decision last month that the evidence shows only three instances in Kansas where noncitizens voted in a federal election between 1995 and 2013, and about 14 noncitizens confused about their eligibility who attempted to register during that period.
Alabama, Arizona and Georgia also have documentary proof of citizenship laws to register to vote, but Alabama and Georgia don't enforce them. Arizona enforces its law for some registrants but doesn't require applicants registering to vote at motor vehicle offices to submit any additional documents beyond what is needed to get a driver's license.
The 10th Circuit Court of Appeals has set August arguments over Robinson's order, but in the meantime upheld her ruling while the appeal plays out.
The email from the secretary of state's office says a temporary regulation is "being promulgated to formalize the process in Kansas' code of regulations."
Clint Blaes, spokesman for Kansas Attorney General Derek Schmidt, said the attorney general's office has not yet received any proposed regulations from Kobach, but would review them in the same manner as any other proposed regulation.
"The secretary of state is representing himself in this lawsuit," Blaes said. "Therefore, the attorney general is not involved in either the lawsuit or the operation of the secretary of state's office."