Kansas Secretary of State Kris Kobach has been getting absolutely creamed by the state press for his proposal to create a two-tiered voting system if his lawsuit against the federal government to make voter registration more difficult fails.
Now, he’s fighting back.
In an op-ed published on the website of KSAL this week, Kobach claims that his efforts to require a “proof of citizenship” document to register to vote – which has put the registration of 17,000 Kansans into limbo and instigated the two-tier plan —is necessary because of “rampant voter fraud”… in Kansas’ first territorial election in 1855.
The integrity of elections has been a crucial concern of Kansans since the birth of our state. More than any other state, Kansas was born in an atmosphere of rampant voter fraud. Our first territorial legislative election saw 4,908 fraudulent votes cast (mostly by Missourians). In the ensuing years, many Kansans put themselves at great risk in order to safeguard the integrity of elections.
Recognizing the need to protect the fairness of elections, the Kansas (Wyandotte) Constitution, adopted in 1859, provided that every Kansas voter must be a United States citizen to cast a legal ballot. The Kansas Constitution also states that the Kansas legislature shall provide for “proper proofs,” or evidence, of the right to vote. It was that authority that the Kansas Legislature exercised during the 2011 legislative session, when it enacted the Secure and Fair Elections (SAFE) Act, which I drafted.
In 1855, about 5,000 pro-slavery Missourians, known as “border ruffians,” streamed over the border to Kansas in a successful effort to elect a pro-slavery legislature (abolitionists had previously organized thousands of northerners to settle the new territory in an attempt to make it a free state). These border ruffians were involved in all sorts of mischief, including violence, intimidation and literal ballot-box stuffing, beginning a bloody pre-Civil War conflict. This is an interesting history lesson, but not exactly relevant to today’s elections.
But it wasn’t just an anomalous period in the nineteenth century that saw voter fraud, Kobach says. He disputes an editorial that contends that he has found “only a handful of voter fraud cases,” saying that in fact he presented 221 fraud cases to the state legislature in 2011.
First, the editorial board claimed that “when Kobach originally proposed the state’s voter ID law,” “[t]here were only a handful of voter fraud cases.” That is false. The number of cases of voter fraud presented to the Legislature in 2011 was 221. That’s many more than a handful – and those are only the cases that we know about. The actual number is likely much higher.
The forms of voter fraud included everything from voting in the same election in two different states, to fraudulently requesting another person’s mail-in ballot, to impersonating another voter at the polls, to fraudulently voting an elderly person’s ballot at a nursing home and forging the person’s signature. These are serious criminal acts that threaten the integrity of our elections.
In fact, that collection of 221 cases of alleged voter fraud took place over a period of thirteen years, averaging 17 cases a year. When the Wichita Eagle looked into the cases Kobach had listed, they found that many did not amount to voter fraud at all. In one case, Kobach claimed that a dead man had voted; the man, very much alive, disputed that fact. The paper found that other cases Kobach counted were “honest mistakes” with no intent to defraud.
Ultimately, only seven of the 211 cases resulted in convictions.
Meanwhile, Kobach’s plan to prevent the epidemic of seven cases of voter fraud over 13 years has suspended the voting rights of 17,000 people and now may result in a bureaucratic nightmare in which some Kansans are allowed to vote only in federal elections and some are still not allowed to vote at all.
But Kobach claims that in proposing a two-tiered voting system to “fix” the mess that his proof of citizenship requirement has made, he is actually “doing the opposite.”
Kobach claims that it is actually the courts that are at fault for Kansas' voting system crisis because they have required states to accept the federal "motor voter" registration form, which requires voters to affirm their citizenship under penalty of perjury but doesn't require extra documentation. Confident he’ll win his lawsuit to add extra restrictions to the federal form in Kansas and Arizona, he insists that he is actually trying “to avoid having two categories of voters.”
In fact I am doing the opposite. Under my leadership, Kansas and Arizona have joined forces to sue the federal government’s Election Assistance Commission (EAC) to change the federal mail voter registration form so that proof of citizenship can be requested from those Kansans who use the form, as Kansas law requires. We are suing in order to avoid the two-categories-of-voters-plan that the editorial board criticizes.
The suit is necessary because, this past summer, the United States Supreme Court in Arizona v. Inter Tribal Council said that states must “accept and use” the federal mail voter registration form to register voters for federal elections. As it is currently written, the federal form for Kansas doesn’t require proof of citizenship. (The state form, which more than 99% of voters use, does require proof of citizenship.)
The way to avoid having two categories of voters is for Kansas and Arizona to bring such a lawsuit and win. The good news is that the Supreme Court specifically suggested this lawsuit in Arizona v. Inter Tribal Council. So there is a very high probability that we will win.
