Opinion: Why did Schmidt enable Kobach?

This election season, Gov. Laura Kelly and her allies have relentlessly worked to tie her opponent Derek Schmidt to former Gov. Sam Brownback, particularly the unpopular cuts to education funding. Yet far more can be gleaned about Schmidt’s character from his relationship with Kris Kobach. Why did Schmidt sit by and do nothing while Kobach usurped the power of the attorney general’s office and then proceeded to handle lawsuits himself, using tactics later described as “antics”? What kind of relationship will these two have if Schmidt wins the governorship and Kobach wins Schmidt’s old post as attorney general? These — not the governor’s tiresome refrain of “Brownback, Brownback, Brownback” — are the questions voters should be asking before casting their ballots.

Schmidt mostly stayed in his lane as attorney general during the Brownback governorship. His formal, legal defense of the state’s tax and funding cuts was simply part of his office’s duties. It does not necessarily reflect support for Brownback’s policies. Schmidt’s relationship with Kobach is another matter, though.

Kobach served as Kansas secretary of state during the first and second of Schmidt’s three terms as AG. During that time, Schmidt sat back and did nothing while Kobach aggressively usurped the powers of the attorney general’s office, transferring one of those powers to the secretary of state in an unprecedented move, unseen in any other state and unused since Kobach left office. Voter fraud in the modern-day United States is rare. When evidence of it does surface, it is typically referred to the state attorney general or to federal authorities for investigation and, if necessary, prosecution. Yet Kobach got the Kansas Legislature to grant his own office these extraordinary powers when they passed the SAFE Act in 2012. Schmidt uttered nary a peep while these powers were yanked away from the AG, traditionally the state’s second-most powerful executive office, after the governor.

Kobach also hogged the limelight, even defending the state personally when the Fish v. Kobach and Bednasek v. Kobach cases were heard before the Federal District Court in 2018. This was highly unusual — typically the secretary of state would use staff attorneys or the attorney general’s office, or even contract with private attorneys, to do this. I was an expert witness for the plaintiffs in Bednasek, and Kobach took my deposition personally, another odd move. Schmidt’s office is just down the hall in the same building, but neither he nor the staff attorneys from his office were anywhere to be found that day.

Appointed by George W. Bush upon a recommendation from Brownback, Judge Julie Robinson ruled against the state and permanently stayed the SAFE Act’s proof-of-citizenship requirement, which would have required that voters prove they are American citizens when registering to vote, typically by producing copies of their birth certificates. She also ordered Kobach to take continuing education courses or lose his law license. Schmidt and his staff attorneys remained absent the entire time.

Schmidt shares Brownback’s party label and made a few rather general comments expressing support during Brownback’s governorship, but that’s about it. The real question voters should be asking is why he did so little to counter Kobach’s antics and what this portends if both are elected this year.

— Michael A. Smith is a professor of political science at Emporia State University.


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