Kobach Finally Tells Clerks To Comply With Court Order On Proof-of-Citizenship

Secretary of State Kris Kobach talks with a reporter in his office in Topeka, Kan., Wednesday, May 17, 2017. (AP Photo/Orlin Wagner)
Orlin Wagner/AP

After two days of confusion — with some but not all county election officials enforcing a Kansas voting restriction struck down by a federal judge Monday — the Kansas Secretary of State’s office instructed local officials Wednesday that proof-of-citizenship was not required to register to vote.

The instructions marked the end — or at least a pause — in a years-long saga of Kansas Secretary of State Kris Kobach fighting tooth and nail to keep his signature voter restriction alive, despite multiple court rulings against it.

U.S. District Judge Julie Robinson issued her order Monday, after a seven-day trial in March, declaring the proof-of-citizenship requirement a violation of both the National Voter Registration Act as well as the 14th Amendment of the Constitution.

However, in the meantime, there was confusion among election officials — reported on by at least one local outlet and noted by one of the country’s top election law experts— over whether the proof-of-citizenship law was still at least partially in effect after Monday’s decision.

On Tuesday morning, Kobach’s office held a 11 a.m. CST conference phone call, led by Kansas Director of Elections Brian Caskey, instructing county officials to continue their current policies — which included requiring proof of citizenship when someone used the state voter registration form — while Kobach’s office reviewed the court order. Caskey said more guidance, including written instructions, outlining compliance with the order would be coming later, county officials told TPM.

Multiple county clerks’ office told TPM Wednesday morning and early afternoon —before Kobach’s office issued its new instructions — that they were still requiring proof-of-citizenship for those registering with the state registration form. Another county official said that by Tuesday morning his office on its own had decided to stop asking for citizenship documents for all Kansans seeking to register.

In an email Wednesday morning, a Kobach spokesperson called “misleading” a report by a local NBC affiliate on confusion caused by one clerk’s continued enforcement of the requirement.

“The Kansas Secretary of State’s Office intends to fully comply with the court. Officials are carefully reading the 118-page decision in order to ensure compliance,” the spokesperson Danedri Herbert said.

While the 118-page decision was thorough, the judge pulled together her various orders — including the instructions to county officials — concisely towards the opinion’s end:

“Defendant shall instruct all state and county elections officers, and must ensure that all training and reference materials for elections officials in Kansas (including but not limited to the SOS’s County Elections Manual) make clear, that voter registration applicants need not provide [documentary proof-of-citizenship] in order to be registered to vote, and need not provide any additional information in order to complete their voter registration applications,” Robinson said, among other orders handed down in her ruling.

The secretary of state’s new instructions were not sent out until Wednesday afternoon, around 2:30 CT time.

“Do not ask for documentary proof of citizenship of any voter registration applicant,” the instructions said.

The new instructions also told county officials to ensure those whose registrations were suspended or canceled due to lack of citizenship docs were made active; to remove references to the requirement from their websites; and to send those voters who don’t present proof of citizenship the same notices and registration confirmations that those who did receive.

The instructions were sent to county officials after TPM sent Kobach’s spokesperson two more emails, after the initial inquiry, about the enforcement of the law and the expected written guidance. TPM had also talked to election officials from multiple counties across Kansas. The Kobach spokesperson never responded to those follow-up emails.

The legal battle over the 2011 law, which was implemented in 2013, included multiple lawsuits and court rulings against it. The case Robinson ruled in on Monday was a consolidation of a 2016 challenge brought by the ACLU, alleging a violation of the National Voter Registration Act, as well a 2015 lawsuit filed on behalf of a college student that said the law was also a U.S. constitutional violation.

The National Registration Act, also known as the Motor Voter Law, mandated that voter registration be offered at DMVs and created a federal registration form for voters across the country to use to register.

Robinson in March 2016 temporarily blocked enforcement of the law on the federal form, citing the NVRA allegations. That temporary injunction was upheld by an appeals court.

Kobach also sought to create a two-tier system, in which those who did not show proof-of-citizenship by registering with the federal form would not be allowed to vote in state and local elections. ACLU sued successfully to stop that system from going into effect, and those registering with the federal form could vote in all races.

The state registration form was still offered in some county clerks’ offices, under the instructions that proof-of-citizenship was required of those registrants. It was up the county which form they offered; one county official told TPM he offered both forms, while another county’s official said she would print out a federal form if someone asked.

Kobach ran into more legal issues, eventually being held in contempt in court, for refusing to update an publicly-available online manual for county officials to reflect the March 2016 temporarily blocking the requirement. He was also knocked by the judge for failing to ensure the county officials to had sent the voters affected by the 2016 order the postcards typically sent to voters confirming they were registered to vote.

During the trial in March, Kobach — who is defending himself in the case — and the other attorneys on his team repeatedly frustrated Robinson by running afoul of trial procedure. Her decision Monday also ordered Kobach receive an extra six hours of continuing legal education.

She ordered a status report be filed in 30 days by the parties in the case to verify that Kansas was in full compliance of her decision.

Kobach’s office says it plans to appeal the ruling.

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