Kansas secretary of state candidates discuss proof of citizenship law, Crosscheck program
photo by: Associated Press
TOPEKA – For most of the state’s history, the office of Kansas Secretary of State was one of the lowest-profile offices in state government – a ministerial job, the major purpose of which was to be the official record keeper of the state, to publish statutes and regulations and record business filings.
The one thing it does that draws significant public attention, of course, is to supervise elections.
But the profile of the office changed dramatically in 2011 when Republican Kris Kobach took office. A zealous opponent of illegal immigration, Kobach championed some of the most restrictive voting laws in the country, including laws requiring people to show photo ID in order to cast a ballot, and documentary proof of U.S. citizenship in order to register to vote.
He also greatly expanded a program begun by one of his predecessors, Republican Ron Thornburgh, known as the Interstate Voter Registration Crosscheck program, or “Crosscheck” for short — a multi-state computer database of voter registrations that is intended to help states maintain accurate voter rolls and prevent people from voting in multiple states by tracking them when they move from one state to another.
Recently, though, both the proof of citizenship requirement and the Crosscheck program have become the targets of federal lawsuits by civil rights activists, including the American Civil Liberties Union. The proof of citizenship law was recently struck down by a federal district judge, and that case is now on appeal, while a new lawsuit was filed last month alleging that the Crosscheck program has resulted in the public release of hundreds of voters’ sensitive personal information.
None of those cases is expected to be resolved by January, when a new secretary of state will be sworn in, which means whoever succeeds Kobach in the office will inherit those lawsuits. That person will then have to decide whether to continue defending them or put them to rest.
Five Republicans are vying for that party’s nomination in the Aug. 7 primary: Reps. Keith Esau and Scott Schwab, both of Olathe; longtime Republican activists Dennis Taylor, of Topeka, and Randy Duncan, of Salina; and Craig McCullah, a former deputy assistant secretary of state in Kobach’s office.
Whoever wins that contest will advance to face Lawrence Democrat Brian McClendon in the general election.
In a series of telephone interviews, the Journal-World reached out to all of the candidates to ask about their thoughts on those issues.
Proof of citizenship
The law requiring proof of citizenship for people to register to vote went into effect in 2013, and it was in force during the last elections for statewide offices in 2014. But it was put on hold during the 2016 presidential election when both state and federal judges imposed temporary injunctions.
While it was in force, tens of thousands of voters had their registrations blocked for failing to provide the required documents.
After a trial, U.S. District Judge Julie Robinson issued a ruling June 18 striking down the law as both unconstitutional and in conflict with the National Voter Registration Act, also known as the “motor voter” law. Kobach, an attorney who has defended himself in the lawsuit, is now appealing that decision. She also imposed sanctions on Kobach for his conduct during the trial.
Taylor, 68, a former Shawnee County commissioner who has held several administrative positions with the state under Republican governors, expressed some hesitance about continuing to defend the law on appeal.
“I haven’t seen the grounds that the secretary plans to make for appeal,” he said. “I don’t know what they are at this point, so I’m a little hesitant to say I would or wouldn’t. I think there’s probably some value in having an appellate court decision either way.”
He went on to say, though, that the state could achieve the same goal of the law – preventing noncitizens from voting – by conducting a thorough audit of the voter registration rolls.
“The bigger issue is really the implementation of an audit scheme that assures that there aren’t people who are voting who are ineligible,” Taylor said. “But you can do that, frankly, without the law changing. You can do that just by auditing the signatures of people who swore under oath, under penalty of perjury, that they’re citizens.”
McCullah, 35, said that he supports the law, but that he would defer to the attorney general’s office about whether to continue with the appeal.
“Any time the Legislature passes a law, it’s our job to defend that law,” McCullah said. “I know that Kris probably authored the majority of it, but if the attorney general doesn’t see any merit in it, then we’ll go back and work with the Legislature and see what other avenues that we could use to make sure we have the safest elections in the country.”
Esau, Schwab and Duncan were all adamant that the state should continue defending the law.
“That’s Kansas law, and we need to defend Kansas law until it’s settled completely,” said Esau, 58, who chairs the House Elections Committee. “Yeah, I would continue the appeal … I support the law. I talk to people and it just makes common sense to make sure people are citizens before they register to vote.”
Schwab, 45, who is speaker pro tem of the Kansas House, also said he supports the law, and he suggested that Robinson’s decision was based partly on personal animosity toward Kobach.
“Clearly this judge had issues with Kris Kobach,” Schwab said. “Now, they may be justified, they may not be justified. I have no idea, but clearly she doesn’t respect Kris.”
Schwab said he does not believe Robinson provided a clear explanation about why the law is unconstitutional, and he said even if the state loses at the Court of Appeals, he believes the issue should be reviewed by the U.S. Supreme Court.
“And then if the Supreme Court strikes it down, at least we know why. But we need to know why,” he said.
Duncan, 61, a former chairman of the Kansas GOP’s First District Committee, also said he supports the law and would continue defending the lawsuit.
“Yes, I certainly would defend it because I think Secretary Kobach and the Legislature are on target with this,” he said. “It’s a sound law, and I think we’re on track with this.”
Meanwhile, McClendon, 54, a former tech executive with companies such as Google and Uber, was the only candidate to say he would drop the appeal and proceed with processing voter registrations without requiring proof of citizenship.
The Crosscheck program began in 2005 as a cooperative venture between Kansas, Missouri, Iowa and Nebraska to track voters who move across state lines without cancelling their old voter registrations.
Under Kobach’s administration, however, the program grew to include more than 30 states at one point, and he once attempted to require all states to participate through his position as vice chairman of President Donald Trump’s short-lived Advisory Commission on Election Integrity.
The Kansas secretary of state’s office administers the program at no cost to the other participating states.
But Crosscheck has come under fire within the last year for producing a high number of “false positives” – people who share the same name and date of birth, but who are not the same people.
An investigative report by ProPublica in October 2018 said the system was fraught with security issues. And an academic research paper published that same month suggested that one of the system’s purging strategies “would eliminate about 300 registrations used to cast a seemingly legitimate vote for every one registration used to cast a double vote.”
Since those reports, eight states have dropped out of the program.
In June, the ACLU filed a class action lawsuit against Kobach alleging that three Kansas voters had personal data released to the public – including dates of birth and the last four digits of their Social Security numbers – after Kobach’s office transferred the information to Florida election officials who later released it to the public in response to an open records request.
None of the Republican candidates called for ending the Crosscheck program.
Taylor said he thinks the goal of the program is good, but that states need to balance their interests in preventing double-voting with the privacy concerns of individual voters.
“I think we need to do a comprehensive review of the program and determine whether that balance is right nor not, and whether there’s some things that either need to be corrected and can be corrected, or simply can’t be,” he said.
Esau said Kansas has already taken steps to improve the security of Crosscheck, adding, “I think there are some additional things we can do security-wise. But Crosscheck is an answer that Kansas and several other states came up with to do the proper cleanup of voter rolls that is required by federal law.”
“Everything in government can be done better,” Schwab said about Crosscheck. “There’s nothing in government that’s done as well as it possibly can. We can always make it better. But Crosscheck is pretty darn good.”
Duncan said the issues with Crosscheck would be best left to people with expertise in information technology.
“You have to rely on your IT experts,” he said. “I don’t think any of us in the race for secretary of state are IT experts … I don’t know if anything nowadays is absolutely foolproof.”
McCullah described Crosscheck as “a very easy, straightforward system for us to use,” but said he thinks the system needs a thorough review to find out how it’s being used in each participating state.
“The Crosscheck programs needs an entire state-by-state review to make sure no information that is not public information can get out,” he said. “I don’t want Kansas information being discovered in a Florida open records request.”
McClendon, the Democrat, noted that there is another option available to states, the Electronic Registration Information Center, or ERIC, that some people consider more effective. But he said if Kansas continues with the Crosscheck system, changes will need to be made.
“I think the problem is that the implementation is weak in a couple of ways. One is around security and the other is around accuracy and the matching algorithm being unintelligent in how it works,” he said. “If we are to continue it, it has to be completely rebuilt.”