Kobach Lost. What’s That Mean For Voting In Kansas?
Registering to vote in the upcoming Kansas primaries? A federal court ruling issued last week means you won’t need your passport, birth certificate or other citizenship papers to do that.
That ruling took immediate effect.
But Kansas Secretary of State Kris Kobach plans to appeal. So what happens next? Here’s a summary based on interviews with legal experts.
The status check
The lawyers who sued Kobach (the American Civil Liberties Union and attorneys from private law firms volunteering their time) are busy checking whether he’s complying with the ruling.
Kobach has a whole laundry list of things to do, from making sure state websites are updated to telling previously blocked voters that they can now vote.
By early July, U.S. District Judge Julie Robinson wants to hear from both sides on whether he’s living up to that.
She’s monitoring it closely after finding the secretary in contempt for ignoring her orders — and after sanctioning him for “repeated and flagrant violations” of evidence rules for trial. (Robinson ordered him to go get some extra lessons in lawyering.)
The Court of Appeals
Kobach has to appeal by mid-July and says he’ll do so. It could take more than a year for a decision from the 10th Circuit Court of Appeals. Both sides would need to file new briefs and offer oral arguments.
Kobach can ask the judges to expedite his case because it affects elections and voter rights. If they agree, their decision may move faster.
Either way, said Rick Hasen, a law professor at the University of California-Irvine, the appeals court already partly weighed in on this case when it upheld an earlier court order against Kobach.
“A further appeal,” Hasen said, “would be unlikely to succeed.”
The 2018 elections
In the meantime, elections are on the horizon. The deadline for registering to vote in the Aug. 7 primary is July 17.
Before last week, Kansas was in a confusing spot because a preliminary court order had blocked part of its proof-of-citizenship law, but not all of it.
All you need to know now is this: You really, truly do not need citizenship papers to sign up for voting. If you see anything saying you need those documents to register at specific locations — such as your local driver’s license bureau — that information is out of date.
Footing the bill
Kansas taxpayers are on the hook for attorney fees unless an appeal upends the current ruling. So far the ACLU has filed for $52,000, but that’s just a sliver of what could be coming. Just how much?
“A substantial amount,” said Mark Johnson, a Kansas City lawyer who has yet to file his request for fees. “I’m sure that the defendant will not be surprised to hear that.”
He and others who worked on the lawsuit haven’t finished their calculations yet, and it’s possible fees wouldn’t be paid until appeals are done.
The new guy
In January, one of six men vying for Kobach’s job will take office and replace him as defendant.
Since the appeal likely won’t be done, that person will have the power to continue or kill it.
The lone Democrat in the race wants to kill it. The five Republicans are divided on the matter, but most want to press forward and turn the case in part, or wholly, over to the attorney general’s office.
Remember, Kobach acts as his own lawyer. Lumen Mulligan, a law professor at the University of Kansas, says handing off to the attorney general would be a return to the norm.
“That office is staffed up with lawyers,” he said. “They have an appellate division.”
The Supreme Court
Kobach could flat out lose his appeal. Or win. Or get a mixed result.
Last week’s ruling was actually two court cases wrapped in one. The first, based on federal law, overturned the proof-of-citizenship requirement as it applied to driver’s license offices. The second was a constitutional argument that proved more effective: It convinced Robinson not just to stop the law at driver’s license offices, but to block it everywhere else in Kansas, too.
So the appeals court could, for example, agree with how she handled one claim but not the other. Kansas could end up in a situation again where the citizenship requirement applies to some voter registration applications, but not others.
Kobach seems eager to press the case all the way to the U.S. Supreme Court, if necessary. Assuming the 10th Circuit appeal fails and his successor wants to go that route, would the country’s highest court take the case?
There’s no way to know. But the Supreme Court rejects the vast majority of requests for review.
Hasen says the justices are more likely to wade into “circuit splits” — when two appeals courts are at odds on the same question.
“There’s no such ‘circuit split,’” he said, “involved in this case.”
Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @Celia_LJ.
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