- The Washington Times - Wednesday, April 29, 2020

A federal appeals court shot down a Kansas policy that required voters who registered under the federal motor-voter law to prove they were citizens before being allowed to vote, saying Wednesday that it shut tens of thousands of voters out of the process.

The 10th U.S. Circuit Court of Appeals rejected the secretary of state’s argument that noncitizens could sign up and vote fraudulently, saying at most that happens only a few times a year in Kansas.

By contrast, more than 30,000 would-be voters struggled to register because of the requirement, the court said.

“The significant burden quantified by the 31,089 voters who had their registration applications canceled or suspended requires us to increase the ‘rigorousness of our inquiry’ … and that such an inquiry demonstrates that the precise interests put forward by the secretary do not justify the burden imposed on the right to vote,” Judge Jerome Holmes, a George W. Bush appointee, wrote in the opinion. “Thus, we conclude the [proof of citizenship] requirement is unconstitutional.”

He was joined by Judge Mary Beck Briscoe, a Clinton appointee. A third panelist died last month and wasn’t part of the final decision. Under the 10th Circuit’s rules, the other two judges were allowed to issue their opinion in a 2-0 ruling because they were in agreement.

Former Kansas Secretary of State Kris W. Kobach, a major figure in the immigration debate and former vice chairman of President Trump’s ill-fated voter integrity commission, told The Washington Times that the judges got it wrong.

“If the Supreme Court takes the case, it is highly likely that it will overturn the decision,” said Mr. Kobach, who pioneered the policy a decade ago. “The opinion is the essence of judicial activism, setting aside the plain meaning of the law and replacing it with a subjective, policy-based balancing test. It reads more like a congressional report than a judicial opinion.”

But Kansas Gov. Laura Kelly, a Democrat who defeated Mr. Kobach for the governorship in 2018, said she wants to see the case dropped, though the decision belongs to current Secretary of State Scott Schwab.

“We ought to be doing everything we can to encourage voting,” she said.

The American Civil Liberties Union, one of many opponents to the policy, called the ruling a blow to Mr. Kobach, who is seeking the Republican nomination to run for Senate from Kansas this year.

“Kris Kobach tried to disenfranchise tens of thousands of voters — we sued, and we won,” the ACLU crowed.

Fights over voter ID, proof of citizenship and the extent of voter fraud have been major flashpoints for years, but they took on new urgency when Mr. Trump won election while losing the popular vote to Hillary Clinton by about 3 million votes.

He speculated that massive illegal voting accounted for his shortfall, though his efforts to prove that case have come up short.

Congressional Democrats have tried to erase voter ID requirements and other voter integrity measures, arguing that they unfairly hurt low-income and minority voters.

A 2008 Supreme Court precedent upheld a voter ID law in Indiana, and Kansas argued that the same factors were at play in its case. The state was worried about fraud, and its requirements weren’t too burdensome.

The 10th Circuit panel, though, said the more than 30,000 people prevented from registering separated the Kansas case from the 2008 precedent.

Mr. Kobach said the court “twisted” the Indiana case.

“That mistake will not stand on appeal,” he told The Times.

Two cases challenged the Kansas requirements as violating the 14th Amendment’s equal protection clause and the National Voter Registration Act, better known as the motor-voter law because it required states to solicit voter registration from customers at service offices such as motor vehicle bureaus.

Motor-voter did not specifically grant states the right to demand proof of citizenship, though there has been a long-running legal dispute over whether they can do it.

Mr. Kobach said the judges ignored the speech by a motor-voter sponsor in the Senate who said it would not prevent a state from requiring proof of citizenship, and the court created its own standard.

“By their flawed reasoning, Congress intended people who register to vote at the DMV never to have to prove citizenship, while people registering elsewhere might have to prove citizenship,” he said.

Kansas had specified 13 pieces of evidence that could be used to prove citizenship and offered the alternative of a hearing to anyone who wasn’t able to provide the evidence.

People who attempted to register without providing proof were given notice, and if they didn’t comply, their registration was deemed incomplete.

The appeals court on Wednesday said the hearing alternative wasn’t enough of a safety valve, because people who thought they had registered might show up and would be unable to cast a ballot, even in provisional fashion.

Kansas had argued that it’s not clear how many of the more than 30,000 would-be voters were being obstinate in refusing to provide proof, versus how many actually lacked the ability.

But the appeals court said there were doubtless some who lacked ability, and that was enough.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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