Kansas judge: Kobach has no authority for dual election system

? A Kansas judge permanently blocked Secretary of State Kris Kobach from implementing a two-tiered voter registration system, ruling Friday that he “simply lacks the authority” to do so.

Shawnee County Judge Larry Hendricks’ latest ruling has no impact on Tuesday’s election because the judge had previously temporarily halted the proposed dual system that would have thrown out votes cast by some Kansas voters in state and local elections. Two recent federal court rulings are already forcing Kansas to let these residents vote in federal elections.

The American Civil Liberties Union sued Kobach, challenging an administrative rule that had set up a dual voter registration system. Under his proposed system, Kansas residents who registered at motor vehicle offices or used a national form without providing proof of citizenship would have been able to vote only in federal races.

But Hendricks halted the plan before the state’s primary election, and later expanded his temporary injunction for the November election — ordering that their votes cast in federal, state and local races all be counted. The final judgment issued Friday finds Kobach lacks the authority to create a new legal status for federal-only voters “out of thin air,” and he also lacks the authority to mandate that other election officials comply with the regulation.

“The right of citizen suffrage forms the foundation of a democratic society,” Hendricks wrote in his decision.

Kobach, a conservative Republican, has championed the proof-of-citizenship requirement as an anti-fraud measure that keeps non-citizens from voting, including immigrants living in the U.S. illegally. Critics argued such requirements suppress voter turnout, particularly among young and minority voters, and that there have been few cases of fraud in the past.

The ruling affects two groups of voters who registered without providing proof of citizenship. More specifically, it affects the 12,111 voters who registered at motor vehicle offices and the 1,466 voters who registered with a federal form, according to counts provided Oct. 26 by the secretary of state’s office.

“When courts take this kind of approach, it becomes very difficult to protect our elections against the very real problem of non-citizens voting, and we presented evidence of non-citizens voting to the court,” Kobach said. “It potentially jeopardizes Kansas’ election security.”

Kobach said he will appeal the judge’s “clearly wrong” decision. He said his office had planned to draft a permanent regulation to replace the temporary one that is set to expire after Tuesday’s elections but now must study his options.

“This ruling is a victory for Kansas voters and a stinging rebuke of Secretary Kobach’s repeated efforts to improperly use his authority to obstruct their access to the ballot,” ACLU attorney Sophia Lakin said in a news release.

The judge found that the permanent injunction is overwhelmingly in the public interest, citing the right to vote by thousands of Kansans.

“Moreover, while the Defendant undeniably has an interest in preventing illegitimate votes from being cast, he lacks the power to create new law to do so,” Hendricks said. “That power lies only with the Legislature.”

The ruling is the latest legal setback for the Kansas Republican who has been embroiled in at least four lawsuits challenging the state’s proof of citizenship requirements.