Kansas Secretary of State Scott Schwab fired a parting shot at the American Civil Liberties Union of Kansas after resolving a two-year legal fight this week.
The lead plaintiff in the case says Schwab's statement is "tone deaf," "completely inappropriate" and "a cheap shot."
A settlement between the state and ACLU requires Schwab's office to acknowledge mistakes were made in the handling of voter registration data exposed through the use of Crosscheck, a program that looks for duplicate voting files. The state won't use Crosscheck again unless costly security upgrades are implemented, making the program dormant for the foreseeable future.
Additionally, the state must pay $8,000 in attorney fees to the ACLU.
“From the day one, election security has been our highest priority," Schwab said. "Although progress has been made, it has also been restrained by ACLU’s odd insistence of filing costly litigation. Our office expects future disagreements to be resolved responsibly, through communication and collaboration, not courtroom confrontations motivated by financial gain at taxpayer expense.”
Schwab's assessment of the Crosscheck lawsuit ignores the actions of his predecessor, Kris Kobach, who enlisted states across the country to swap millions of voting records through unsecured emails. The Crosscheck program produced false positives 99% of the time, and Florida officials inadvertently released the sensitive data of 945 Kansas voters in response to an open records request.
Scott Moore, one of those 945 Kansas voters and the namesake of the lawsuit, wrote a letter to Schwab expressing disappointment in the secretary's response to settling the case. Moore blamed Kobach for the failure to resolve the issue responsibly.
"I would have been happy to come to an agreement outside of the courts," Moore said, "but that was never going to happen while Kris Kobach was in office. I felt bad that you had to clean up the mess made by your predecessor, and had you suspended Crosscheck after taking office earlier this year, the suit could have been wrapped up quickly."
Lauren Bonds, legal director for ACLU Kansas, said the class action lawsuit ACLU filed in 2018 on behalf of Moore and the other 945 voters became necessary when Kobach told legislators he didn't see any problems with the use of Crosscheck and didn't plan to invest $20,000 needed for security upgrades recommended by a federal audit.
"When we know that’s the posture of the government on a civil rights issue or a civil liberties issue," Bonds said, "usually that’s going to be a situation where we made the assessment and said we don’t want to delay our clients in getting justice more than we have to and decide to file the suit. And so, from that perspective, I think it’s inaccurate for Secretary Schwab to say we’re just going around filing lawsuits and not making responsible decisions."
Bonds said the ACLU reaches out to relevant agencies and the Kansas Attorney General's office to try to resolve issues without litigation. For example, the ACLU drafted but didn't file a lawsuit over the under-treated spread of Hepatitis C within state prisons, choosing instead to work with the Kansas Department of Corrections to address the situation.
In the Crosscheck case, the state continued to press federal courts for dismissal of the lawsuit after Schwab took office in January, renewing an argument that Kansas voters have no right to privacy for their personal data, including Social Security numbers. ACLU tried to initiate settlement talks in June, Bonds said, but the state wouldn't engage until losing motions to dismiss the case.
Bonds also rejected Schwab's assertion of a financial motive.
"We don’t make much money on our lawsuits," Bonds said. "If we were a private law firm, we would be in bankruptcy right now. We often resolve cases without getting attorney’s fees. We often file cases where it’s unlikely we’ll get attorney’s fees."
In another high-profile case involving the secretary of state's office, the ACLU challenged a state law that required new voters to produce a birth certificate before registering. Kobach defended his signature legislation in federal court, where a judge determined there was no proof of widespread voter fraud to justify the restrictions.
The judge ordered the state to pay $26,000 in ACLU legal fees after Kobach was found in contempt of court for failing to comply with her orders.
Schwab said litigation consumes resources, raises emotions and can be an unnecessary roadblock to future collaboration. Everyone benefits, he said, by meeting to hash out disagreement rather than communicating through court proceedings.
"Our request is simple," Schwab said. "It is time to end the cycle of litigation. Our team has been, and will continue to be, open to the public, media and other entities who wish to visit. We are here to serve, and although we may not ultimately agree, we’re always happy to have a respectful conversation on the issues at hand."