Supreme Court declines to hear Kobach appeal on proof of citizenship

? People in Kansas can still register to vote in federal elections without showing proof of citizenship, the U.S. Supreme Court ruled Monday. But whether those people will be allowed to vote in state and local elections remains an open question.

The court on Monday refused to hear Kansas Secretary of State Kobach’s appeal in a case in which he asked that the U.S. Election Assistance Commission provide a federal voter registration form that comports with state law, which requires voters to show proof of citizenship.

Last year, the 10th U.S. Circuit Court of Appeals ruled against Kobach, saying the EAC did not have to provide a revised federal form for use in Kansas. The Supreme Court’s decision Monday not to hear Kobach’s appeal means the 10th Circuit’s ruling will stand.

Kobach said Monday he wasn’t surprised by the ruling because the Supreme Court often waits until there is a split between different appellate courts before taking a case, and so far the 10th Circuit is the only appellate court that has ruled on the question of amending the federal registration form.

Meanwhile, a separate lawsuit is pending in state court that challenges Kobach’s policy of not allowing people who registered using the federal form to vote in state and local races. That case, which is pending before Shawnee County District Judge Frank Theis, was filed by the American Civil Liberties Union and the League of Women Voters.

“Now that the Supreme Court has said the federal form doesn’t have to be changed, the question is teed up for him to answer,” said Mark Johnson, a lecturer on election law at Kansas University who also serves on the board of the ACLU of Kansas. “On the constitutional argument, there is the possibility that we could have a bifurcated election system.”

During the 2014 elections, while both the state and federal cases were still pending, Kobach’s office conducted a “dual” election system in which people who had registered to vote and shown proof of citizenship using the state form were allowed to vote in all races, but people who used the federal form could only vote in federal races.

Attorneys for the ACLU asked Theis in July 2014 to block Kobach from holding dual elections. But with state and federal primary elections only a month away, and with a related case still pending at that time before the 10th Circuit, Theis declined to step in.

The 10th Circuit did not issue its decision, declining to force the EAC to provide revised federal forms, until Nov. 7 last year, three days after the general election.

Since then, there has been little action on the ACLU lawsuit in Shawnee County, in part because Theis was also the presiding judge on a three-judge panel that oversaw the massive school finance lawsuit. A ruling in that case was just handed down Friday.

As a result of the proof-of-citizenship requirement, more than 23,000 people who’d failed to provide the required documents were prevented from voting in 2014 because their registrations had been placed “in suspense.”

Meanwhile, a small number of people who’d registered using the federal form were only allowed to vote in federal races.

However, if Judge Theis rules in the ACLU lawsuit that the state cannot operate a dual election system, that would open a door to negating the proof of citizenship law because voters could merely bypass it by registering to vote using the federal form.

Kobach, however, said he doesn’t think that’s likely to happen.

“The federal form was created by a federal statute, and the statute says it is for federal elections,” Kobach said. “It doesn’t purport to make that form available for state elections. Some states use it as a matter of courtesy, but no state is required to do so.”

— Peter Hancock can be reached at (785) 354-4222. Email him at