Kansas once required voters to prove citizenship. That didn’t work out so well

TOPEKA, Kan. (AP) – Republicans have made claims about illegal non-citizen voting a key to their 2024 primary. campaign message and we plan to push legislation in the new Congress that would require voters to provide proof of US citizenship. Yet there is one state with a GOP supermajority where linking voting and citizenship seems like a nonstarter: Kansas.

This is because the state has been there, done that, and every few Republicans would rather not go there again. Kansas imposed a proof of citizenship requirement a decade ago that escalated into one of the state’s biggest political controversies in recent memory.

The law, which was passed by the state Legislature in 2011 and went into effect two years later, ended up blocking the voter registration of more than 31,000 US citizens who were otherwise eligible to vote. That was 12% of all first-time registrants in Kansas. Federal courts eventually declared the law an unconstitutional burden on voting rights, and it has not been enforced from 2018.

Kansas provides a cautionary tale about how pursuing election petitions actually runs the rare risk of disenfranchising too many people. The state’s top election official, Secretary of State Scott Schwab, supported the idea as a legislator and now says states and the federal government shouldn’t touch it.

“Kansas did that 10 years ago,” said Schwab, a Republican. “It didn’t work out that well.”

Steven Fish, a 45-year-old warehouse worker in eastern Kansas, said he understands the reason for the law. In his view, the state was like a shopkeeper who was afraid of being robbed and had to put up the locks. But in 2014, after the birth of her now 11-year-old son encouraged her to “be a little more responsible” and pursue politics, she didn’t have an acceptable copy of her birth certificate to register to vote in Kansas.

“The locks didn’t work,” said Fish, one of nine Kansas residents who sued the state over the law. “He caught a lot of people who did nothing wrong.”

Small problem, but extensive support for repairs

What happened in Kansas appeared to be getting little attention outside the state as Republicans elsewhere pushed for proof of citizenship requirements this year.

Arizona made it a requirement this year, applying it to state and local elections but not for Congress or the president. The Republican-led US House passed the requirement for proof of citizenship over the summer and plans to bring back a similar law after the GOP wins control of the Senate in November.

In Ohio, the Republican secretary of state revised the form poll workers use in voter eligibility challenges to require those not born in the US to show identification papers to vote regularly. A federal judge refused to block the working days before the election.

Also, dozens of voters in Iowa, Kentucky, Missouri, Oklahoma, South Carolina and the presidential swing states of North Carolina and Wisconsin were encouraged to amend their state constitution’s provisions on voting even though the changes were only symbolic. Provisions that previously declared that all US citizens could vote now said that only US citizens could vote – a meaningless distinction that has no discernible effect on who is eligible.

To be clear, voters must prove they are US citizens when they register to vote and non-citizens can face fines, jail time and deportation if they lie and are caught.

“There is nothing unconstitutional about ensuring that only US citizens can vote in US elections,” US Rep. Chip Roy, of Texas, a lead sponsor of the congressional proposal, said in an emailed statement to the Associated Press.

Why the courts rejected the Kansas citizenship law

After Kansas residents challenged their state’s law, a federal judge and an appeals court ruled that it violated a law that mandates the collection of the minimum information necessary to determine whether a person is eligible to vote. That is a problem that Congress can solve.

The courts ruled that with “little evidence” of a real problem, Kansas could not justify a law that prevented hundreds of eligible citizens from registering for all noncitizens who were improperly registered. The judge concluded that the state’s evidence showed that only 39 non-citizens registered to vote from 1999 to 2012 – an average of only three per year.

In 2013, then-Kansas Secretary of State Kris Kobach, a Republican with a national reputation for strict immigration laws, described the possibility of voting by immigrants living in the US illegally as a major threat. He was elected attorney general in 2022 and remains a staunch supporter of the idea, saying the federal court’s rulings in the Kansas case “almost got it wrong.”

Kobach also said a key issue in the legal challenge — people who can’t fix problems with their registrations within the 90-day window — may have been resolved.

“The technological challenge of how quickly you can verify someone’s citizenship is becoming easier,” Kobach said. “As time goes on, it will get easier.”

Can the Kansas law stand today?

The US Supreme Court refused to hear the Kansas case in 2020. But in August, it split 5-4 on allowing Arizona to continue enforcing its ballot law in state and local elections while the legal challenge continues.

Recognizing the possibility of a Supreme Court decision in the future, US Rep. Derek Schmidt says states and Congress should pursue proof-of-citizenship requirements. Schmidt was the attorney general of Kansas when his state law was challenged.

“If the same issue happens now and is tried, the facts may be different,” he said in an interview.

But voting rights advocates reject the idea that a legal challenge will go the other way. Mark Johnson, one of the attorneys fighting the Kansas law, said opponents already have a template for a successful court battle.

“We know people we can call,” Johnson said. “We know we have expert witnesses. He predicted “a rash – a landslide – of lawsuits against this.”

Born in Illinois but unable to register in Kansas

At first, the impact of the Kansas demand seemed to fall heavily on apolitical and minority voters. As of fall 2013, 57% of voters who were blocked from registering were unaffiliated and 40% were under 30.

But Fish was in his 30s, and six of the nine citizens who sued the Kansas law were 35 or older. The three even produced citizenship documents but they have not been registered, according to court documents.

“None of us were illegal or misinterpreted or misrepresented any information or did anything wrong,” said Fish.

He had to produce his birth certificate when he applied for registration in 2014 when he renewed his Kansas driver’s license at the office at the mall in Lawrence. The clerk refused to accept Fish’s copy of his birth certificate. He still doesn’t know where to find the original, as he was born at an Air Force base in Illinois that was closed in the 1990s.

A number of people who joined Fish in the case are veterans, all of whom were born in the United States, and Fish said he was amazed that they could be barred from enlisting.

Liz Azore, senior counsel for the nonpartisan Voting Rights Lab, said millions of Americans have not traveled outside the US and do not have passports that could prove citizenship, or they do not have proper access to their birth certificates.

He and other voting rights advocates doubt there is an administrative fix that will make the ID law work more smoothly today than it did a decade ago in Kansas.

“It will involve many people from all walks of life,” said Avore. “It will ban large areas of the country.”

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Associated Press writer Julie Carr Smyth in Columbus, Ohio, contributed to this report.