On Tuesday, a state board adopted a regulation proposed by Secretary of State Kris Kobach’s office allowing thousands of Kansas voters whose registrations were suspended to vote in federal elections but not in state and local races.
By presenting it as a temporary rather than permanent regulation, the office was able to submit it to the State Rules and Regulations Board, which exists only to approve temporary regulations. Such regulations don’t have to go through the typically elaborate process for permanent regulations, which require a 60-day public comment period before being adopted.
Here’s an explanation of what happened Tuesday, what the State Rules and Regulations Board is, and how Kobach’s proposal came to be adopted with virtually no advance notice and no public input.
What’s this all about?
In 2011, Gov. Sam Brownback signed the Kansas Secure and Fair Elections Act (SAFE) into law. Among other things, the law, which was championed by Kobach as an anti-election-fraud measure, requires voter registration applicants to submit documentary proof of citizenship, such as a birth certificate or passport, when they apply to register to vote. The proof-of-citizenship requirement became effective on Jan. 1, 2013.
One problem with SAFE is that the National Voter Registration Act, which Congress passed in 1993 and is commonly known as the “motor voter” law, requires states to accept uniform federal voter registration forms. Those forms do not require documentary proof of citizenship. They merely require registrants to sign a statement, under penalty of perjury, that they are U.S. citizens.
But didn’t a court strike down the proof-of-citizenship requirement?
Actually, two courts have. In 2013, the American Civil Liberties Union challenged Kansas’ two-tiered voter registration system that prevented federal form registrants from voting in state and local elections unless they provided documentary proof of citizenship. The ACLU argued that it divided registered voters into two separate and unequal classes. In January, Shawnee County District Judge Franklin Theis ruled that Kobach’s office had overstepped its legal authority by creating the system.
Another legal challenge, this one in federal court, was mounted by several motor-voter registrants who failed to meet the documentary proof-of-citizenship requirement along with the League of Women Voters of Kansas. In May, U.S. District Judge Julie Robinson ruled that the proof-of-citizenship requirement violated the part of the National Voter Registration Act requiring “only the minimum amount of information” to determine a voter’s eligibility.
Robinson ordered Kobach to register more than 18,000 otherwise eligible motor voter applicants in Kansas who had been barred from registering to vote in state or federal elections.
What happened after the courts ordered Kobach to let the suspended voters vote?
Kobach appealed Theis’ decision to the Kansas Court of Appeals and Robinson’s decision to the 10th U.S. Circuit Court of Appeals. On June 10, the 10th Circuit refused to stay Robinson’s order while it considers the merits of Kobach’s appeal. Kobach then proposed the temporary regulation adopted by the State Rules and Regulations Board on Tuesday.
What is the State Rules and Regulations Board?
The board meets periodically to consider adopting temporary, as opposed to permanent, regulations. It has five members: one representative from the attorney general’s office, one from the secretary of state’s office and one from the secretary of administration’s office, as well as two members of the Legislature.
How ‘temporary’ are temporary regulations?
Temporary regulations can be adopted for 120 days and renewed “for good cause” for another 120-day period. In the case of the regulation adopted Tuesday, the 120-day period extends to Nov. 8, which just happens to be the day of the general election.
What’s the difference between a temporary and a permanent regulation?
Kansas law authorizes the adoption of a temporary regulation if “the preservation of the public peace, health, safety or welfare” makes it necessary before a permanent regulation can be put into effect. An agency seeking to adopt a temporary regulation does not have to comply with the notice, public hearing or publication requirements of a permanent regulation.
Why did Kobach propose the measure adopted Tuesday as a temporary regulation?
Kobach’s office claims the clock only started ticking on June 10, when the federal appeals court declined to stay Robinson’s order. As a result, it says, it didn’t have sufficient time to go through the permanent regulation process.
“Literally, we had to draft the regulation, then forward it to the Department of Administration, which we did with some dispatch,” Assistant Secretary of State Eric Rucker told KCUR. “Then it went to the attorney general’s office. And we did not finish that process until, I want to say, last Friday, which would have been July 8. Then we checked everybody's availability for the meeting date, which was on Tuesday of this week.
“And so literally, within 48 hours, if you don't count the 8th, we did not fiddle around. We tried to pass it as quickly as we possibly could after the final approvals were done.”
But wasn’t Kobach on notice long before that something needed to be done?
That’s certainly the view of Mark Johnson, a Kansas City attorney and election law expert who was present at the State Rules and Regulations Board meeting on Tuesday. Johnson said he questioned whether there was an emergency situation that required the abrupt action taken by the board.
“It's intended for truly emergent situations, which I don't believe this falls within, but the board was convinced that it does,” he told KCUR. “This is something that the secretary of state has known about for 11 months, did nothing about and now he has put a gun to your head.”
Did Kobach’s office orchestrate the timing to prevent people from voting in state and local races on Election Day, Nov. 8?
It certainly appears that way, but Rucker insists his office didn’t realize the temporary regulation would extend to the general election until someone pointed it out after the fact.
“Sometimes things are serendipitous,” he said.
So now what happens?
Suspended voters will vote with provisional ballots.
It’s possible, however, that the temporary regulation will be challenged in court, either on procedural or substantive grounds.
Marge Ahrens, co-president of the League of Women Voters of Kansas, told KCUR the board’s decision was “further unsettling to the rights of Kansans to vote.”
“It sets up an additional barrier or extends the barrier across further acres of Kansas,” she said. “It’s very disturbing.”
And Doug Bonney, an attorney with the American Civil Liberties Union, told KCUR that, apart from whether the State Rules and Regulations Board followed appropriate procedure, he questioned whether it had the power to adopt the regulation. He said the ACLU was considering challenging the regulation but hasn’t made a final decision yet.
Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR, which is also a partner in a statewide collaboration covering elections in Kansas. You can reach Dan on Twitter @DanMargolies.