Kansas Secretary of State Kris Kobach has used national media to allege that New Hampshire's voting law left that state susceptible to voter fraud. Now, Kansas election officials are quietly acknowledging the same issue that riled Kobach in New Hampshire also exists in Kansas.
What caught Kobach's eye in New Hampshire is that New Hampshire voters were using out-of-state driver’s licenses to prove their identity at New Hampshire polling places, and that many of those voters still hadn’t applied to receive a New Hampshire driver’s license more than 10 months after the election.
Kobach said in a column published on the conservative website Breitbart that the driver’s license issue was evidence of nonresidents of the state committing voter fraud. However, Kansas election officials told the Journal-World that same scenario is legal under Kansas law.
The main difference between the New Hampshire and Kansas law is that Kansas voting officials have done less to publicize their state’s voting provision. Douglas County Clerk Jamie Shew said he doesn’t often talk about a provision in Kansas law that potentially gives out-of-state residents the ability to vote in Kansas because he doesn’t want people learning how to abuse the system.
“I think a lot of people don’t know this part of the law is present,” Shew said. “I think there are a lot of assumptions because you hear about other states where there are stricter residency rules. It makes me a little nervous about advertising this.”
In his Sept. 7 column on Breitbart, Kobach — a Republican who leads President Donald Trump’s voter fraud commission — criticized New Hampshire’s voting law because it didn’t take the time to “assess the eligibility of the voter,” and the New Hampshire law allows poll workers to take “the voter at his word” that he or she is a resident of the state who is eligible to vote. New Hampshire has a law that allows voters to register the day of the election. Kansas closes the registration book 21 days in advance of an election, which gives the state more time to assess the qualification of voters.
But when it comes to checking whether voters actually live in the state, it is not clear that Kansas does any more than New Hampshire.
The Journal-World interviewed several Kansas election officials — both Republicans and Democrats — to find out how Kansas’ voting laws compare with the New Hampshire law that Kobach criticized. On the matter of out-of-state driver’s licenses, the issue is clear cut. The Kansas and New Hampshire laws are basically the same.
When voting in Kansas, you are required to show photo identification when getting your ballot. That’s also true in New Hampshire. Most often that is a driver’s license. But Kansas law doesn’t require that it be a Kansas driver’s license, just like New Hampshire’s law doesn’t require a New Hampshire driver’s license.
Kansas law does require people to bring lots of forms of identification to register. Kansas — and Kobach in particular — is a leader in the effort to ensure people who register are U.S. citizens. But those documents — birth certificates, passports, etc. — are only designed to show you are a U.S. citizen. They do nothing to show you are a resident of a state, county or city and thus qualified to vote in those jurisdictions.
People who are registering to vote in Kansas are required to sign an application that states, among other things, that they are residents of Kansas.
But what does it mean to be a resident of Kansas? That is not as straightforward as you may think.
Kansas, like other states, has a provision in its voting law called “intent to return.” It is the part of the law that ensures you don’t become ineligible to vote just because you are not home on voting day. For instance, maybe you are a construction worker staying for weeks at a time at an out-of-state job site. You intend to return to your home, thus you are still eligible to vote there.
But not every example is so simple, and the instructions from Kobach’s office on how to administer the intent to return provision rely largely on taking the word of the voter.
“We’re not really the address police or the residence police,” said Jamie Allen, county clerk of Saline County. “You are swearing that what is on the card is accurate.”
Although the intent to return clause does prove useful in some situations — a retiree who spends part of the year in Kansas and part in Texas, for example — it also opens the door for someone who has no bona fide connection to the state to vote in Kansas, election officials said.
That seems to be the same concern Kobach was expressing about New Hampshire law. The Journal-World has unsuccessfully been seeking an interview with Kobach or a representative for months to discuss the intent to return provision of Kansas voting law. Kobach’s office in recent days said it was working to respond to written questions from the Journal-World, but those responses were not received by the Journal-World’s deadline.
But how does the intent to return law open the door for someone outside the state to vote in Kansas? Based off information provided by several county clerks, here’s how the intent to return law could be used:
A person fills out the form to register to vote. A Kansas driver’s license is not required.
The address given as the person’s Kansas residence is entered into the voting system. In a few days, the voter should expect to receive a voter card in the mail. The postal system is instructed not to forward that voter card to a new address.
If the county clerk receives the voter card returned as undeliverable, the clerk reaches out to the person, often via phone.
That conversation may reveal that the address was simply written down wrong. But sometimes it reveals that the person doesn’t receive mail at the location because he or she doesn't live at the location. They live somewhere else — perhaps in another state — but they continue to vote in Kansas because they have an “intent to return.”
At this point, you may think the county clerk would ask a few basic questions, such as: Do you own the property? Do you have a lease for the property? Do you have any documents that show you have a connection to that property? The word “return” suggests that the person previously lived at the address, or at least in the jurisdiction in question. But clerks do not attempt to confirm whether that is the case, and the secretary of state has issued no guidance on what the law means by “return.”
Clerks do not ask those questions because Kobach’s office has instructed them they are not relevant. Shew noted that the state used to ask for basic paperwork — deeds, leases, utility bills, etc. — to show that a person had a connection to a particular address. But after Kobach successfully lobbied to have his new voter ID law passed by the Kansas Legislature, he directed election officers to stop asking for those types of documents. Shew still doesn’t know why.
“It makes the law very difficult to administer,” Shew said.
But county clerks make do. They simply take the word of those of people who say they intend to return.
“We’re not the election police,” Sherrie L. Riebel, county clerk for Allen County told the Journal-World earlier this year. “And I don’t have a lie detector test to put them through.”
A Douglas County voter fraud case has raised many of the questions surrounding the state’s voter law and its intent to return clause.
The Journal-World reported in February that Lois McGovern and her son, Douglas County Sheriff Ken McGovern, were being investigated by the secretary of state’s office for possible voting law violations.
Friday afternoon, after months of inquiry by the Journal-World, the secretary of state’s office issued a brief statement on the McGovern case: “After investigating, we concluded there was no criminal intent,” Samantha Poetter, a spokeswoman for Kobach, said.
The brief statement, however, left open the question of whether Kansas’ intent to return clause is so broad that people can use it to say that they intend to return to a home they no longer own and no longer have any legal right to occupy.
That was at issue in the McGovern case. Lois McGovern was registered to vote in the 2016 primary at a Lawrence home that she had sold more than a year before the primary. She had left the home, had no lease on the home and had no legal ability to occupy the home in the future. The McGoverns have acknowledged she was not living at the home. The complainant has alleged — and there is some evidence to suggest — that she was living in a Johnson County nursing home. The sheriff — who like Kobach is a Douglas County Republican — was implicated because he facilitated his mother receiving her ballot in the primary election. He picked the ballot up at the courthouse for her and signed a document listing that his mother was registered to vote at the home she no longer owned or occupied.
But Rep. Vic Miller, D-Topeka — a Kobach critic and the ranking minority member of the House Elections Committee — said the law is clear that people can’t declare that they are going to return to a residence they have no ability to return to.
“That is not the law,” Miller said. “The law is you must have an intent to return, but you still have to prove that you intend to return.”
Miller said if the secretary of state’s office adopts the position that all you have to do is say you are going to intend to return, the law becomes a mockery.
“It is not even a loophole,” Miller said. “It is simply unproveable.”
Shew said he also worries that the law is virtually unenforceable as it currently is being administered.
“Prosecutors say that is impossible to prosecute because the way the law is written they get on the witness stand and say ‘I intended to return at some point,’” Shew said.
Miller, though, said he’s not sure a change in law is needed — just a change in philosophy by the secretary of state. He said the fact that Kobach is criticizing New Hampshire’s law while acting haphazardly in Kansas is telling.
“People need to give more focus about the hypocrite that (Kobach) is,” Miller said. “He is being absolutely a hypocrite.”
In a twist, it now appears that New Hampshire is exceeding what Kansas does to ensure people actually are residents of the state before they vote.
David Scanlan, deputy secretary of state in New Hampshire, said lawmakers during the last session passed a new bill that requires people registering to vote to bring in documentation that links them to the address. That includes a lease, a utility bill, or in the case of on-campus college students, a dormitory receipt. If would-be voters can’t produce those documents, they are required to sign an affidavit swearing they will produce those documents in a certain number of days. If they don’t produce those documents, an officer of the state can go to the residence in question to determine if the voter has a connection to the property.
Kansas law does none of that.
It may in the future, though. Rep. Keith Esau, R-Olathe, chair of the House Elections Committee and a GOP candidate for secretary of state, said he does want to further investigate whether Kansas’ voting laws are being properly administered.
“You are giving me some ideas for things that we can look at in the election committee next year,” he said when the New Hampshire law was described to him.
Shew, a Lawrence Democrat, said states easily can go too far in what they require of voters in the registration process. Democrats and the ACLU have howled at Kobach’s provisions related to proving U.S. citizenship.
But he said the idea of a valid voter having his or her vote canceled out by someone who isn’t authorized to vote in an election is an important one. That idea has been a foundation of the argument about ensuring non-U.S. citizens don’t vote. But it equally applies to ensuring a resident of another state isn’t allowed to vote in Kansas or that somebody from one county isn’t allowed to vote in another.
Shew thinks it is a topic lawmakers should discuss.
“I find it kind of interesting,” Shew said. “(Kobach) pointed out that New Hampshire law could have changed their Senate race. Well, our law kind of mimics that, so, we should have that same discussion.”