DENVER — Judges of an appeals court peppered Kansas Secretary of State Kris Kobach and his opposing counsel Tuesday with questions about a controversial state voter registration law, but didn’t give a clear view of what their decision on it will be.
Three judges of the 10th U.S. Circuit Court of Appeals heard 30 minutes of arguments from Kobach and American Civil Liberties Union attorney Dale Ho about the 2011 law, which Kobach said is being used by the ACLU as a national test case.
At issue is the law’s requirement that Kansans who submit voter registration applications at Division of Motor Vehicle offices must provide proof they are United States citizens.
“The ACLU would like to take a state down ... to send a message to other state legislatures (that are considering enacting a similar requirement),” Kobach told reporters outside the courtroom in Denver.
The judges so frequently interrupted Kobach and Ho with questions while they were trying to present their arguments that Kobach, in particular, was not left with much of his allotted 15 minutes to make his presentation.
The question before the judges is whether, as Kobach wants, to overturn a lower court order barring him, as the state’s top election official, from enforcing the law in the Nov. 8 election for federal offices.
The ACLU and the League of Women Voters contend the requirement is preempted by a 1993 federal law, the National Voter Registration Act. That law limits requirements to be able to register to the minimum necessary.
Those organizations contend the requirement is an unnecessary barrier to voting.
Appeals court judge Mary Beck Briscoe, Lawrence, noted the federal law is intended to make it easier for citizens to register.
The appellate judges asked Kobach whether providing proof of citizenship goes beyond what is the minimum that is necessary. He pointed out the federal law does not explicitly prohibit the proof requirement.
Ho, director of the ACLU’s voting rights project based in New York City, pointed out Congress rejected adding the proof requirement to the law.
Ho and Kobach agreed the sooner that appeals court issues its decision will be better for approximately 18,000 Kansans whose voting eligibility is at stake. They did not provide proof of citizens when they applied at DMV offices to register.
More people could be affected before the November election.
The appeals court expedited Kobach’s appeal of Robinson’s order, but has not said when it might issue its decision.
Kobach said the “problem” of a non-citizen voting is “it cancels the vote of a citizen.”
Forty-six percent of Kansans who register to vote submit their applications at DMV offices, Kobach said. He said the concern about non-citizens voting has grown because of the influx of non-citizens into the U.S. in recent decades.
Most non-citizens who vote do it unintentionally, Kobach told reporters.
Residents who register to vote by mail or in person at a office other than a DMV office are required to provide citizenship proof. Kobach said it would be absurd not to require it at motor vehicle offices.
Kobach said if the appeals court upholds the order issued by U.S. District Judge Julie Robinson on May 28 in Kansas, there will not be enough time before the election for him to ask the U.S. Supreme Court to overturn Robinson’s order.
A trial is set for next year that is to determine whether to keep the order in effect indefinitely. That trial is to decide whether the federal law preempts the state law.
If Kobach loses that trial, he said he will ask the Supreme Court to consider the legality of the state law.