WASHINGTON — The U.S. Supreme Court will not take up Kansas’ petition seeking to reestablish a voting restriction crafted by former Kansas Secretary of State Kris Kobach.
By denying the state’s petition, the court upheld rulings by the U.S. Court for the District of Kansas and the 10th U.S. Circuit Court of Appeals that found Kansas’ proof of citizenship law to be unconstitutional.
The law, which went into effect in 2013, required prospective voters to provide a birth certificate, passport or other documentation to prove their status as citizens before they could register to vote, a measure that the law’s supporters said would prevent no-citizens from voting.
But the law also resulted in thousands of citizens going into a suspended voter registration status for the 2014 election.
“Tens of thousands of Kansas voters were illegally denied the most fundamental right in our democracy because of this law. The Supreme Court’s decision not to review the case will finally close this chapter on Kris Kobach’s sorry legacy of voter suppression,” said Dale Ho, director of the American Civil Liberty Union’s Voting Rights Project, which represented plaintiffs in the case.
The law hasn’t been fully enforced since 2016 because of legal challenges. It was struck down by the district court in 2018, just months before Kobach lost his race for governor against Democrat Laura Kelly. Kelly, now governor, had voted in favor of the law as a state senator in 2011, but she later called that vote a mistake and opposed the state’s appeal in the case.
Kansas Attorney General Derek Schmidt and Kansas Secretary of State Scott Schwab, both Republicans, handled the appeal. But the court’s denial of the state’s petition effectively ends the legal dispute and ensures Kansans will only need to attest to their citizenship status with their signatures in order to register to vote in future elections.
“The Kansas statute requiring documentary proof of citizenship when registering to vote passed the legislature with overwhelming bipartisan majorities, and we vigorously defended it on appeal,” said John Milburn, Schmidt’s spokesman.
“But with today’s decision no options for further legal defense remain and the legislature will need to determine how to proceed in light of the judicial rulings.”
Schwab said he hoped another state would re-litigate the issue in a future case, but he downplayed the decision’s impact to Kansas’ elections as he oversaw state’s Electoral College vote Monday in Topeka.
"We don’t have massive voter fraud in the state of Kansas. I think we found that out during this election,” Schwab said. “And we don’t see a whole bunch of people trying to cheat. And some people try, but we don’t have it. So as it relates to how we do our elections going forward, it’s not going to change a whole lot. But it does limit what states can do.”
The rejection by the court comes just three days after it declined to hear a Texas-led lawsuit seeking to overturn the presidential election, which Schmidt had supported with an amicus brief.
It also comes as Republican-led state legislatures are contemplating new restrictions to voting in the aftermath of the election, which saw an unprecedented amount of mail-in voting.
“A decision like this will make them think twice about doing it and make them realize there are people who are committed to fighting these efforts to suppress votes,” said Mark Johnson, a Kansas City-based attorney and partner at the Dentons law firm, who served as one of the attorneys in the successful suit against the Kansas law.
Still left to be determined is the final legal bill for the state, which will be required to pay plaintiffs’ attorneys’ fees. They were represented by multiple law firms and the ACLU.
“I think it’s unfortunate that the state fought all the way. They never, ever gave an inch on this even though all along we were winning. We were confident in our case all along,” Johnson said.
“Because the state fought everything— I mean they fought everything and forced us to go to the court every time to get information out of them that we had a right to. The state ran up the fees.”
Johnson’s client, Parker Bednasek, was a University of Kansas, undergraduate student in 2015 when the case began. He is now attending KU School of Law, Johnson said.
Rick Hasen, an election law professor at the University of California, Irvine, School of Law said Kansas “never should have even taken the case to the Supreme Court in the first place given Kobach’s utter failure in proving his claims of widespread voter fraud and his inept running of the trial.”
In 2018, after a series of missteps in district court, Kobach was found in contempt and ordered to take six hours of remedial legal training on civil procedure. That gave Schmidt little chance of success when he took over in the case for the appeal.
“The Supreme Court has tolerated a number of laws that make it harder for people to register and vote in the name of preventing voter fraud and giving states the ability to run their elections as they see fit. The Fish case shows there are limits to that,” Hasen said, referencing the ACLU’s client Steven Wayne Fish.
“Disenfranchising tens of thousands of people without proof of fraud goes too far under federal law and the Constitution.”
In a phone call, Kobach rejected the notion that his courtroom performance resulted in the state’s loss at the district court level.
He agreed with Schmidt’s office that the high court’s Monday denial represents the end of the Kansas litigation, but he said that the issue of proof of citizenship could still come before the court in the future if a state outside of the 10th Circuit enacts a similar law and it results in a contradictory ruling.
“There’s nothing more the (Kansas) attorney general’s office can do on the case, but I think the issue is far from over. There were a number of states looking at this in the past few years. I think the 2020 presidential election has raised the focus on election security,” Kobach said.
“The rest of the country has a wide open path ahead of it if more states want to pursue proof of citizenship,” Kobach said, contending that the ruling only affects Kansas and the five other states covered by the 10th Circuit.
Kobach said that he was involved in Texas’ failed attempt to overturn the presidential election results in four states, serving as an adviser on Texas’ briefs. The court rejected the lawsuit Friday evening.
Kobach said he would not consider Joe Biden to be president-elect until Congress votes to accept the Electoral College results on Jan. 6, but he acknowledged that few opportunities remain for President Donald Trump to contest the election results after Friday’s decision.
“That was the best route forward for the president and now that the route has been closed down there are other paths, but they are much more difficult,” Kobach said.
(The Kansas City Star’s Jonathan Shorman contributed to this report.)
