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The proof-of-citizenship requirement is a union of Kobach's years-long crusade for tougher measures targeting undocumented immigrants and for voting regulations that restrict access to the ballot. As a law professor, Kobach helped write the Arizona anti-immigration law SB 1070, which was eventually gutted by the Supreme Court. Since Kobach won election as Kansas' top election official, he not only championed voter restrictions, but also aggressively pursued prosecutions of alleged cases of voter fraud. Experts widely agree that instances of actual voter fraud are extremely rare, especially when compared to the number of otherwise eligible voters believed to be disenfranchised by restrictions like voter ID.
Kobach's ties to Newby, who was appointed as executive director of the EAC only in November, has brought the controversial proof-of-citizenship decision additional scrutiny. As the Johnson County Election Commissioner, Newby was appointed by Kobach's predecessor, and re-appointed by Kobach in 2014 (the commissioners of the four largest counties in Kansas are appointed by the secretary of state.)
MSNBC called Newby's and Kobach's past working together "a friendly relationship," pointing to Newby's praise for Kobach on his blog, where he recounted that the comments Kobach's made when swearing him in to his local post "made me kind of misty.” As the county commissioner, Newby also sat on a task force on implementing the proof-of-citizenship law.
In an interview with TPM earlier this week, Kobach defended the move and Newby's authority to issue it. He denied that it was any special favor from a former colleague, and said the state would have requested the proof-of-citizenship requirement no matter who stepped into the role of executive director of the commission.
“We had the letter drafted long before Newby was selected and it was going to go to whoever the new executive director was,” Kobach said when asked by TPM whether Newby’s appointment to the position played a role in the state’s request to change the form. “We were just waiting for an executive to be appointed, and whoever it was would have gotten the same letter.”
With the change ordered by Newby, those seeking to register to vote in Kansas using the federal voter registration form will have to show proof that they are citizens of the United States, such as a passport of a birth certificate. The requirement is based on a 2011 state law and was to go into effect in 2013. The law has been fiercely criticized by civil rights advocates for allegedly disenfranchising minority, elderly, low income and disabled voters, who are less likely to have access to the required documents. Voting rights groups have challenged Kansas’ requirement in state and federal courts on various grounds.
The Supreme Court dealt Kobach a major setback last June when it refused to take up a lower court’s ruling that states could not force the feds to require proof of citizenship on the federal voting registration form. A previous 2013 Supreme Court decision said Arizona could not require those using the federal form to show proof of citizenship, though the court said that states could ask the EAC to change the form to meet the state requirements.
Previously, because Kobach was not able to get a court to force the federal government to change the federal voting form to require proof of citizenship, Kansas residents without the required documentation for the state law could still register with the federal form and vote in federal elections. (The previous federal form did require those registering to vote sign an affidavit under penalty of perjury affirming that they are citizens, but did not require proof of citizenship.)
A Kansas state court had also ruled in January against the two-tiered system, suggesting that those without proof of citizenship would be able to vote in state elections as well.
With Newby’s approval of the new form -- which he also approved for Georgia and Alabama -- however, those potential voters could be barred from the electoral process entirely.
“That is the way the system is supposed to work,” Kobach told TPM. “The National Voting Registration Act, and the Help America Vote Act charged the EAC with cooperating with states to work on the content on the federal form so it reflects the state law. It was never Congress’ intent to create a separate set of qualifications for voting for federal office that differ from those for state offices.”
But Newby’s approval of the form did not have the support of the full commission. EAC vice chair Thomas Hicks, the lone Democratic-appointee, accused Newby of acting “unilaterally” and breaking with commission protocol for proposing any “material” changes to the federal form.
“The Commission has addressed this matter several times over the last decade and voted to decline requests to add conflicting language to the federal voter registration form,” Hicks said in a statement. “As such, I believe that this decision constitutes a change of policy, which can only be made following official adoption by at least three Commissioners.”
In an interview with MSNBC, Newby said he could issue the policy on his own -- though he tried to make the distinction that he wasn't changing the form itself but rather the instructions that accompany it. He also rebutted claims his previous relationship with Kobach created a personal conflict.
Kobach, meanwhile, told TPM that Newby’s approval was the “the appropriate way the agency should handle these state requests,” claiming the practice of a director handling such requests on his own had only stopped in recent years when there was only an acting director who feared she didn't have the proper authority, not an appointed director like Newby.
Kobach also said there was “nothing out of ordinary” about his relationship with Newby.
“We have very good relations in my office with all of my county officers, and that crosses a partisan divide as well,” Kobach said.
The state of Kansas sent the EAC its request for the approval four days after Newby’s last day at his Kansas post, but Kobach said any communication between Kansas and Newby while the request was pending was limited to courtesy calls about when a decision could be expected.
“He didn’t make any promises or assurances to the state of Kansas,” Kobach said. "We asked when we could expect an answer, so there was communication when the decision would be forthcoming from the executive director.”
The fate of the form, however, is still uncertain. Hicks said he is looking into how the commission can address the change, and Micah Kubic, the executive director of the American Civil Liberties Union of Kansas, said in an email to TPM the organization was “weighing all of the options available to us.”
Kobach, meanwhile, didn’t rule out that the move could face a legal challenge, but did not seem too concerned with the backlash.
“The proof-of-citizenship requirement has been overwhelmingly well received. The public reaction has been positive,” he said. “In fact, some of the opinion surveys indicate that it’s even more well liked than our photo ID requirement."