Ortiz had gone to the Kansas Department of Motor Vehicles to renew his license, and he registered to vote at the same time. Ortiz did not have documents that prove his citizenship, and no one asked him for any. Last fall, he received a letter saying his voter registration was “in suspense” because he had not shown proof of citizenship documents, a state requirement to register in Kansas. His name is off the rolls.
“I was shocked,” said Ortiz, a 35-year-old father of four who was born in New York. “I defended my country for 13 years. I own a home here in Kansas. I pay taxes in Kansas. I register my vehicles in Kansas. I’m a veteran who’s registered with the VA. There were many different avenues for them to figure out that I was a U.S. citizen. It was insulting.”
National attention on voting rights has mostly focused on whether new voter-identification laws in states such as North Carolina and Texas will disenfranchise minority voters. But there is a battle unfolding in Kansas over who can register to vote in the first place. Election-law experts say what happens here could have ramifications for voting throughout the country during a pivotal presidential election year.
On Thursday, the American Civil Liberties Union sued Kansas, saying that thousands of Kansas residents such as Ortiz are “trapped in limbo” because of the requirement that Kansas residents who register to vote have to show documents, such as a birth certificate or a passport, proving they are citizens.
“What’s happening in Kansas is outrageous,” said Dale Ho, director of the ACLU’s Voting Rights Project. “Thousands of Kansans, including military veterans who have valiantly served our country, are blocked from voting by unnecessary bureaucratic roadblocks imposed by state officials. These shameful actions have made Kansas an epicenter of voter suppression.”
At the center of the controversy is Kris W. Kobach, the state’s powerful secretary of state. Educated at Harvard College, Oxford and Yale Law, the 49-year-old Kobach is a lightning rod for his work in the past several years on new voting requirements in Kansas and other states.
“Kobach has been a leader nationally in making irresponsible claims that voter fraud is a major problem in this country,” said Richard L. Hasen, an election-law expert at the University of California at Irvine.
But to their defenders, Kobach and others promoting similar laws are heroes who are fighting to protect the integrity of the election process.
In Kansas, Kobach spearheaded a law that, beginning in 2013, required Kansas residents who registered to vote using the state voter form to provide proof-of-citizenship documents, such as a birth certificate or a passport. Those with incomplete voter registration applications are removed from the rolls after 90 days and have to try to re-register.
When Democratic presidential candidate Hillary Clinton criticized the law last year for placing a burden on minorities, poor people and young voters and making it more difficult for them to vote, Kobach fired back on Facebook at “left-wing knuckleheads,” saying, “Hillary is getting her pantsuit in a twist over nothing.”
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.
The Election Assistance Commission
The action of a relatively unknown Washington agency has opened a new front for Kobach.
In an unusual move last month, the new executive director of the federal Election Assistance Commission (EAC) — established in 2002 to help states run elections and to promulgate the federal online voting form — unilaterally changed the instructions for the form in three Republican-led states: Kansas, Georgia and Alabama. (Kobach said he helped Alabama officials write their proof-of-citizenship law.)
The director, Brian Newby, is a former Kansas county election administrator whom Kobach had reappointed in 2014, calling him “an extraordinary election commissioner.” In late January, Newby sent letters to officials in Kansas, Alabama and Georgia, adding “proof of citizenship” requirements to federal forms used in those states. Newby was not appointed by President Obama but was chosen by the agency’s commissioners.
An EAC spokesman would not comment. A request to interview Newby was declined. Kobach says he had nothing to do with Newby’s appointment and was disappointed to lose him as a commissioner in Kansas.
Before Newby arrived, the EAC had already turned down one request from Kobach to add the proof-of-citizenship requirement for voters in Kansas to the federal form. Kobach asked again a few months ago.
Newby took the action without consulting the three commissioners on the board, which led the one Democratic commissioner, Vice Chairman Thomas Hicks, to release a statement calling for Newby’s action to be withdrawn. Hicks said the change “contradicts policy and precedent previously established by this commission.”
Newby’s action could help other Republican secretaries of state make proof of citizenship a requirement to vote in their states, according to Ho of the ACLU.
“He did so without legal authority, without public notice, and in direct opposition to the Election Assistance Commission’s repeated rejection of such changes,” Ho said. “His abuse of power is unacceptable and illegal.”
On Feb. 12, the League of Women Voters and several civil rights groups, including the Lawyers’ Committee for Civil Rights Under Law, sued the EAC over Newby’s action.
“Voters should not have to face an obstacle course in order to participate in our democracy,” said Elisabeth MacNamara, the league’s national president.
Kobach said he is not worried about the lawsuit.
“The EAC was presented with new evidence showing a significant number of aliens who became registered to vote because there were no proof-of-citizenship requirements,” Kobach said. “That evidence justified the EAC’s decision, which was made in perfect compliance with applicable law.”
In the ACLU’s latest lawsuit this week, Ortiz is a plaintiff. He says he has not re-registered to vote and is not sure what he is going to do.
The ACLU says that what happened to Ortiz is a violation of the National Voter Registration Act, also known as the Motor Voter Act, the federal law designed to make it easier for Americans to register to vote. Under that law, states have to give residents the opportunity to vote when they apply for or renew their driver’s licenses at the DMV. But according to Ho, Kansans are being told at the DMV that they must present additional citizenship paperwork to become registered — or, like Ortiz, they are not being informed at all, only to find out later that they have been suspended from voting.
About 37,000 Kansans trying to register to vote were on a “suspense list” and unable to vote as of September, and nearly 90 percent of them were there because of the documentary proof-of-citizenship requirement, the ACLU said.
“I hope it wasn’t because of my Hispanic background,” Ortiz said. “But it’s hard for me to say. I was told it wasn’t all Hispanics on the suspense list. But I don’t know. I have voted in the past in other states, and I’ve never had to go through this.”