Randall Kilian thought he was investing in his new retirement property in Colorado when he received a mail-in ballot in 2012 asking if he would like to legalize marijuana in that state.
“When I saw that on the ballot, it's like, ‘Oh, wow, that’s something I’ll never get a chance to vote for again. So bam! I vote on it,” Kilian says. “Voted in Ellis County (Kansas), just like I’d done for 25 years.”
Problem was: Amendment 64 was a Colorado issue, on a Colorado ballot. Kilian, who lives in Hays, Kansas, also voted in his home state that year. Four years later, in early 2016, Kilian learned of his mistake from a reporter.
“All of a sudden,” he says, “I’m indicted.”
Kilian’s votes got him caught up in Kansas Secretary of State Kris Kobach’s high-profile crusade against voter fraud and brought to light one of Kobach’s most important, if flawed, tools: the Interstate Voter Registration Crosscheck Program. Housing half of all U.S. voter registrations, Crosscheck gained national attention this year after Kobach advised President Donald Trump in connection with the president’s false claims of pervasive voter fraud in the 2016 presidential election.
In Kobach’s hands in Kansas, Crosscheck has evolved into a tool for shoring up claims of voter fraud instead of its original intention of keeping voter rolls accurate. And critics say that mission inappropriately targets voters who made innocent mistakes and shouldn’t be criminally charged.
`Poster boy for fraud’
Flagged in the Crosscheck system as having voted in both Colorado and Kansas, Kilian was charged by Kobach, who announced it in a press release. In April 2016, Kilian, 63, pleaded no contest to a misdemeanor count of “voting without being qualified” and paid the $2,500 fine.
“Now I’m the poster boy for voter fraud,” Kilian says, “not only in Kansas but throughout the country.”
Kobach, the only secretary of state in the U.S. with prosecutorial powers, has won six convictions on double voting charges made since the Kansas Legislature handed him those rights in 2015. All six cases came from Crosscheck, according to Kobach’s office, mostly older Republican males, with just one Democrat and one woman.
Kobach touts the Crosscheck program as a powerful tool that has been used to help states keep voter rolls accurate and current. It was created in 2005 in Kansas as a service to three nearby states, but Kobach has promoted and grown Crosscheck, offering it for free to the other 30 states currently in the system.
Kobach didn’t respond to several requests from KCUR for an interview, although his office assisted with some details.
Critics say that in the hands of Kobach, Crosscheck has become a means to his political ambitions and dismiss outright that there are problems with double voting.
Former Missouri Secretary of State Jason Kander says officials must obviously protect the integrity of elections. But too many politicians, including Kobach, incorrectly use data from Crosscheck and similar programs to hurt voters, he says.
"They too often use these systems to come up with an excuse to kick eligible voters off the voting rolls or to start witch hunts to scare voters," Kander says.
On Tuesday, Kander, who lost a close race for U.S. Senate in November, launched "Let America Vote," a non-profit aimed at "winning the public debate over voter suppression." He was joined by, as The Hill noted, "a who’s who of progressive politics," including former Obama staffers.
Crosscheck rife with ‘false positives’
Although falsely amplified on President Trump’s Twitter account in January, it’s actually not illegal to be registered to vote in two states. In fact, it happens all the time as people move frequently or own property in several places. Rarely does anyone call their state elections office to update their address.
It is illegal, however, to vote in two states during the same election, a law most of us don’t know about. It also very rarely happens. An academic analysis released last month titled “One Person, One Vote,” found that double voting in the 2012 election was 0.02 percent, and likely much lower.
That hasn’t stopped Kobach, who inherited the Crosscheck program when he came into office in 2011 and used it to not only seek convictions but to support his unproven claims of high numbers of illegal voting.
During an August 2015 edition of KCUR’s Statehouse Blend podcast, Kobach was promoting another of his criticized plans — requiring an ID before voting.
Kobach turned to double voting, which he said was one of the easiest ways to perpetrate voter fraud. He said 125,000 people were registered to vote in Kansas and another state. But that doesn’t jibe with a presentation he gave to the National Association of State Election Directors in 2013 when he said Crosscheck found around 80,000 double registrations from Kansas. And Kobach never answered whether those matching registrations, which are not illegal, lead to double voting, potentially not legal.
Even Kobach’s office admits, in a Crosscheck participation guide given to states, that the system is rife with “false positives and not double votes,” as it only looks for matches of first name, last name and date of birth, so lots of people with common names are found. If each state doesn’t spend the money to investigate all the dual registrations, it could erroneously knock too many names from voter rolls, critics charge.
Mark Johnson, a Kansas City attorney who has fought Kobach in court over voter suppression cases, says Crosscheck is often wrong because it doesn’t use other identifiers, like Social Security numbers, middle names or initials, or whether a male voter is a junior or senior with the same name.
“He’s grandstanding,” Johnson says. “He has used this minimal number of prosecutions in a way that I think is inappropriate. He has forced these people to plead guilty to crimes, to pay fines, to pay lawyers, when it all could have been done by sending a letter and then putting out a press release.”
KCUR contacted some of the people Kobach has charged. Through their attorneys, they refused requests for interviews, citing reports already in the media and their wishes that the attention would die down.
Kilian felt much the same way, but talked to KCUR hoping to tell his side of the story, a side he says he’s disappointed Kobach didn’t seek. In addition to the $2,500 fine, Kilian says he’s out several thousands in attorney’s fees but didn’t want to fight the case because it could have cost him in the tens of thousands.
He’s embarrassed at the attention the case has received and he’s angry he’s still getting calls from reporters. Still, he says he holds no animosity toward Kobach and feels going after voter fraud is a good idea.
“(Kobach) or his office never called me to ask my side of the story,” Kilian says “He was able to see what he wanted to see and felt like he could make a case which would enhance his opportunity for political advancement.”
Looking at the same set of facts in Kilian’s case, Tom Drees, the Ellis County, Kansas, prosecutor, opted not to file charges. Drees said he didn’t think a jury, looking at a man with a spotless record and paying property taxes in two states, would convict Kilian.
While some critics have charged that the Crosscheck program targets mostly minority voters with common names, that hasn’t been proven true. That said, three states — Florida, Washington and Oregon — have dropped the program “after concluding that the data was error-ridden,” according to the Lawyers’ Committee for Civil Rights Under Law.
“Oregon left the Kansas Crosscheck program because we found more effective and efficient ways to help ensure more accurate voter rolls, specifically the ERIC program,” says Molly Woon, a spokeswoman for the Oregon Secretary of State.
ERIC, or Electronic Registration Information Center, was launched by the Pew Charitable Trusts in 2012. Many election watchers consider it more accurate, as it compares states’ voter lists using more data points than Crosscheck. States pay a one-time fee of $25,000 while Kansas provides Crosscheck to states for free.
“On the whole, (Crosscheck) is a clunky, even sloppy program that states should not participate in,” says Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law. “At the same time, we have not seen evidence that it is the catastrophe that some progressives and reporters believe it to be.”
Clarke refers to an August 2016 piece in Rolling Stone, in which journalist Greg Palast says the GOP was using Crosscheck lists to target “solid Democratic constituencies: young, black, Hispanic and Asian-American voters.” KCUR didn’t find any evidence of that kind.
But Clarke says: “Where the rubber meets the road is examining what states actually do with the data after they receive the initial matches.”
The lawyer’s committee, among other groups, have investigated what states do with the Crosscheck data, Clarke says. Localities are using more data points and sifting through that information before taking actions that could disenfranchise voters, she says.
In Michigan, for instance, Crosscheck is one tool used in what’s called the “cancellation countdown,” created to rid voter rolls of deceased people and because the state had a large population loss from 2000 to 2010, says Fred Woodhams, a spokesman for the Michigan secretary of state.
“We had a lot of dead wood on our election rolls and we wanted to make sure we had a good list,” Woodhams says.
So after receiving Crosscheck data, Michigan analyzes it against a voter’s last four digits of a Social Security number and the voter’s date of birth. If the match is accurate, a postcard is sent to the voter.
If the voter responds to the office or votes in Michigan again, the cancellation countdown is suspended, Woodhams says. If there is no response from the voter, the office waits another two federal election cycles — two-to-four years — and then removes the voter from the list, he says.
Yet, Crosscheck is doing more purging than it should, according to the most recent analysis of the program, the “One Person, One Vote” study.
“We find their proposed purging strategy would eliminate about 200 registrations used to cast legitimate votes for every one registration used to cast a double vote,” the study says.
More cases to come?
Kilian, who wouldn’t say how he voted on the marijuana issue that got him into trouble, says this experience has left him disillusioned with the political process. He is no longer registered to vote — anywhere — and did not vote in the recent presidential election.
Kilian has read Kobach’s comments on the case and wonders why he would say people intended to game the system when he never spoke to them.
“Out of all the people in Kansas he finds six people who own property in two different states and have done this and he thinks that he’s done something that he can take pride in?” Kilian says.
Whether he takes pride in it or not, Kobach is not ending his work on filing double voting charges. He filed a ninth case last month against a 28-year-old Republican man who moved from Topeka to Texas, and his spokeswoman says Kobach plans to file more cases in the coming weeks.
Peggy Lowe is investigations editor at KCUR and Harvest Public Media. You can find her on Twitter at @peggyllowe.
Answers to questions on double voting
Q: Is it illegal to be registered to vote in more than one state?
A: No, there are many people who move or die each year, making them “ineligible” to vote in their old jurisdiction. However, these registrations can and do become lingering entries on the voter rolls if election officials do not receive timely notification of the changes. Federal law also provides safeguards against removing potentially eligible voters from registration lists, thereby slowing the process of updating voter rolls if proper notification hasn’t been received.
Q: Is it illegal to vote in more than one location?
A: Yes, casting more than one ballot is considered fraud. Under the law, you should only vote where you legally reside.
Q: How do I make sure my voter registration information is up-to-date, or that I’m not registered in more than one place?
A: You can use www.CanIVote.org (a nonpartisan website) to find contact information for your local election office based on where you currently live. Your local election officials can walk you through the process of checking your voter registration information and, if necessary, notifying election officials at your old address that you no longer reside in that location. In many places, you can actually tackle some or all of the process online.
Source: National Association of Secretaries of State
Editor's note: An earlier version of this story misspelled Kilian's last name.