Two-tiered voting

In an interview this week in his Topeka office with a view of the state Capitol, Kobach called the Kansas voting law’s burden on voters “so small as to be virtually nonexistent.”

“The only burden is finding your birth certificate in your desk or wherever you keep it and taking a picture of it with your smartphone or making a copy and sending it in to the county or taking it in yourself.”

On his wall, Kobach has a framed copy of the 2011 “Secure and Fair Elections Act” with the proof-of-citizenship requirement he helped craft. Next to his desk is an 1892 copper ballot box with a secure lock, loaned to him from former attorney general John D. Ashcroft, his boss when he was a White House fellow.

A former chairman of the Kansas Republican Party, Kobach first came into the national spotlight with his efforts to strengthen immigration laws. During the 2012 presidential campaign, Kobach advised Mitt Romney on “self-deportation” immigration policy. He was the architect of Arizona’s strict “show your papers” immigration law, and he has helped lead the fight against President Obama’s immigration executive actions.

Kobach disagrees with election-law experts who say there is no evidence of a significant voting-fraud problem in the United States.

“My view is that it should be easy to vote but hard to cheat,” Kobach said. “The reason we have to do this is there is a significant problem in Kansas and in the rest of the country of aliens getting on our voting rolls. With so many close elections in Kansas, having a handful of votes that are cast by aliens can swing an election.”

Kobach also said that workers at the DMV often unwittingly register noncitizens to vote.

“Thousands and thousands of driver’s licenses are issued every day, many of those to noncitizens, and it appears that noncitizens are routinely being asked, ‘Would you like to register to vote?’ So we had a lot of aliens getting on the voting rolls.”

There are several ways to register, including at the DMV. Residents can also fill out state or federal voting registration forms, in person at other locations, or online. Under federal law, states are required to accept the federal voting form. The federal form has required residents to swear they are U.S. citizens, but they do not need to submit citizenship documents such as the ones that Kansas requires. That difference has led to a stream of litigation in recent years.

The Supreme Court in June 2013 struck down an Arizona “proof of citizenship” law that required residents to submit documents proving citizenship when they registered to vote at the federal level. The late justice Antonin Scalia, who wrote the majority opinion, said states could not impose a documentary proof-of-citizenship requirement for those who register to vote using the federal form. Under the 1993 National Voter Registration Act, Scalia said the states had to accept the federal voting form.

But Kobach continued to challenge the authority of the federal government to require Kansas to accept the federal form for state elections, and he argued that states had the final say. Anyone who registered to vote in Kansas using the federal form would only be registered to vote in federal elections and could not vote in state elections, Kobach said.

In September 2013, the ACLU of Kansas filed a lawsuit, Belenky v. Kobach, challenging Kansas’s two-tiered voter registration and saying that eligible voters were being divided into “separate and unequal classes.” The ACLU argued that the new Kansas voting process was confusing and inconvenient for students, elderly residents and low-income voters, who may not have the required citizenship documents.

In January, a Kansas state court ruled in favor of the ACLU and two Kansas voters who registered to vote in Kansas using the federal form but who had been denied the right to vote in state elections by Kobach. The court said Kobach could not operate a two-tiered voting system and only count the votes in federal — not state and local — races for residents who registered with the federal form.

Kobach reacted by saying the case was “far from over.” He was right.