Topeka A Kansas judge who had ordered the state to count the local and state primary election votes of some people who had not provided documents proving their citizenship said on Wednesday that his previous ruling remains in effect for the November general election.
Shawnee County District Judge Larry Hendricks heard arguments Wednesday over whether he should make permanent the temporary ruling that required Kansas to count those primary votes, but did not make a ruling from the bench.
Dueling lawyers for the state of Kansas and the American Civil Liberties Union had interpreted Hendricks' ruling differently, creating confusion.
Kansas Secretary of State Kris Kobach, who wants to toss the votes of those who have not proven their citizenship, told reporters after the hearing that the judge's previous ruling only applied to the primary election, and he was awaiting a decision on whether it would apply to the November election. The ACLU lawyers said it did apply to November.
After the hearing, The Associated Press asked Hendricks to clarify, and the judge said his earlier order stands until he issues a new decision. Hendricks had said previously that he feels strongly about protecting the right to vote.
"I hope he issues a permanent injunction, but if he doesn't decide, the temporary injunction insures those votes are counted," said Dale Ho, director of the ACLU's voting rights project, which sued Kansas over the citizenship requirement.
The lawsuit was on behalf of three prospective voters who registered while getting their driver's licenses without providing proof of U.S. citizenship. ACLU lawyers argued on Wednesday that all voters who registered this way should have their votes counted even if they didn't provide the citizenship documents. Kansas is one of four states that have passed laws requiring proof of citizenship to register to vote.
Federal courts had previously ordered Kansas in a separate case to count those votes in federal elections, but Kobach proceeded to try to set up a two-tier voting system that would count the votes in federal elections but not in state or local races.
Kansas says that 18,611 people registered to vote by Sept. 1 at motor vehicle offices without providing citizenship papers. About 50,000 could be affected by the time of the November election.
In a third lawsuit on Kansas voting laws, the U.S. Court of Appeals for the District of Columbia blocked Kansas, Georgia and Alabama from requiring residents to prove they are U.S. citizens when registering to vote for federal elections using a national registration form.
Hendricks' decision in the ACLU will cover both those categories of voters — those who registered at motor vehicles offices and those who used a federal form— and did not provide proof of citizenship.
In a further complication, Kansas residents who did not register in those two ways will still have to provide citizenship documents to register to vote. The League of Women Voters said Tuesday that as of August Kansas had purged the registrations of about 6,570 prospective voters who had registered other than at the motor vehicle offices, most of them for not providing the citizenship documents within 90 days.
Kobach, a conservative Republican, has championed the proof-of-citizenship requirement as a way to prevent fraud by people in the country illegally. Critics contend such fraud is rare. They also say the requirement suppresses turnout because eligible citizens may not be able to immediately provide documentation such as a passport, birth certificate or naturalization papers.
Timeline of Kansas drive for citizenship proof to vote
Kansas Secretary of State Kris Kobach has championed laws requiring proof of citizenship to vote. The conservative Republican argues the tough laws on voting eligibility are needed to protect elections against fraud, but critics contend such restrictions are unnecessary and suppress voter turnout — particularly among the young and minority voters.
Here's a look at the long-running political and legal fight over Kansas voter registration laws:
— March 29, 2011: The Kansas Legislature passes an elections reform bill, the "Secure and Fair Elections Act," which requires people to provide evidence of U.S. citizenship — such as a passport, birth certificate or naturalization papers — in order to register to vote.
— June 17, 2013: The U.S. Supreme Court blocks states from requiring proof of citizenship for registering to vote in federal elections. The court says that states cannot impose proof-of-citizenship requirements above those set on the federal voter registration. But the high court left open the ability for the states to request that the U.S. Election Assistance Commission change the federal form for their states.
— Aug. 2, 2013: Kobach and Arizona Secretary of State Ken Bennett file a federal lawsuit seeking to force the EAC to grant their requests to add proof-of-citizenship requirements to the federal voter registration form used by residents in their states. U.S. District Judge Eric Melgren orders the EAC to add the proof of citizenship requirement to the federal form, but his ruling is quickly blocked by the 10th U.S. Circuit Court of Appeals.
—Aug. 5, 2014: Kobach institutes a two-tiered voting system in the Kansas primary election that counts only ballots cast in federal races — and not those in state and local contests — from voters who registered using a national form.
— Nov. 7, 2014: The 10th Circuit rules Kansas and Arizona residents can register to vote using a federal form without having to provide proof of citizenship, rejecting the states' arguments that the EAC has a duty to grant their requests to change the federal form.
—Sept. 2, 2015: As the number of prospective voters on the Kansas suspension list grows to more than 35,000, an administrative rule proposed by Kobach allows election officials to purge registration applications older than 90 days.
— Sept. 7, 2015: Two young Kansas residents file a federal lawsuit seeking to prevent the state from requiring them to document their U.S. citizenship and to keep election officials from removing their names and thousands of others from registration rolls.
— Jan. 15, 2016: Shawnee County District Judge Franklin Theis rules Kobach has no legislative authority to impose a two-tier voting system in which some voters who registered using the national form can cast votes only in federal races, and not state or local races. The Kansas judge found the right to vote in Kansas is not tied to the method of registration.
— Feb. 1, 2016: Brian Newby, the new executive director of the EAC, unilaterally and without public notice changes the instructions on the federal voter registration form for Kansas, Alabama and Georgia. Newby, a former elections commissioner for Johnson County, had been appointed to his previous Kansas post by Kobach.
—Feb. 12, 2016: The League of Women Voters and a coalition of civil rights group file a federal lawsuit against Newby and the EAC in Washington, D.C., seeking to overturn Newby's actions. Kobach later joins the lawsuit on Newby's behalf.
—Feb. 18, 2016: The American Civil Liberties Union files a federal lawsuit in Kansas contending that people trying to register to vote at Kansas motor vehicle offices are being forced to provide documentary proof of citizenship in violation of federal law.
—May 17, 2016: U.S. District Judge Julie Robinson temporarily orders Kansas to allow people who registered at motor vehicle offices to vote in federal elections, finding the state law likely violates a provision in the National Voter Registration Act that requires only "minimal information" to determine a voter's eligibility.
— June 29, 2016: U.S District Judge Richard Leon in Washington, D.C., refuses to block Newby's actions, finding that proof of citizenship requirements to register to vote are not burdensome. The League of Women Voters subsequently appeals to the U.S. Court of Appeals for the District of Columbia.
— July 12, 2016: The State Rules and Regulation Board in Kansas issues a temporary rule proposed by Kobach that orders election officials to only count votes cast for federal races —and not state and local races — from Kansas voters who registered at motor vehicle offices without providing citizenship documents. The 120-day temporary rule extends through Nov. 8, the date of the general election.
— July 19, 2016: The American Civil Liberties Union files a Kansas lawsuit challenging Kobach's latest rule setting up a two-tier election system.
__ July 29, 2016: Shawnee County District Judge Larry Hendricks blocks Kobach's rule, and orders Kansas to count votes in state and local races cast in the August primary cast by people who registered in motor vehicle offices without providing citizenship documents.
__ Sept. 9, 2016: A three-judge panel of the U.S. Court of Appeals for the District of Columbia blocks Kansas, Georgia and Alabama from requiring residents to prove they are U.S. citizens in order to vote in federal elections if they registered using a national form.
__ Sept. 21, 2016: Shawnee County District Judge Larry Hendricks tells The Associated Press after a hearing on the ACLU voting case that his earlier order to count the votes in the August primary also applies to the November election.