For years now states led by Republican governors and GOP majorities in legislatures have imposed stringent voter registration requirements that made it harder for many persons to exercise their right to vote.
A leader in that effort, the state of Kansas, was in the news recently after the 10th Circuit Court of Appeals slapped down the state's proof-of-citizenship voter registration law, thereby rebuking the handiwork of former Kansas Secretary of State Kris Kobach, an evangelist, so to speak, for onerous legislation designed to hinder the registration of would-be voters.
The appellate ruling was Kobach's second smackdown. The district judge's decision nearly two years ago held that the law not only violated the Constitution's equal-protection provisions but also the National Voter Registration Act, the so-called federal "motor-voter" law.
But as the Associated Press reported, while the court agreed "in the abstract" that Kansas "has a legitimate interest in counting only the votes of eligible voters it did not see any evidence" that justified burdening voters' rights in the case. In fact, the appellate judges noted that the trial court "had found essentially no evidence" that the state's electoral process had been threatened, that the registration of ineligible voters had created inaccurate voter rolls, or that voter fraud had occurred.
That last finding is important because most such laws are built upon foundations of sand; that is, ominous warnings of alleged "voter fraud." Indeed, as the AP reported, Kobach was a source for President Trump's "unsubstantiated claim that millions of immigrants living in the U.S. illegally may have voted in the 2016 election."
Actually, in person voter fraud is virtually non-existent. To get an idea of just how flimsy the Kobach law was, the appellate judges found that "at most 67 non-citizens registered or attempted to register in Kansas in the last 19 years."
No surprise, then, that the court "found no reason to question the trial judge's determination that noncitizenship voting in Kansas was negligible at most and that 31,000 qualified voters had been denied the right to vote for failure to supply the required documentation."
Ironically, the district court "had found that even under the calculations of the state's experts, the estimated number of suspended applications that belonged to non-citizens was statistically indistinguishable from zero."
It's doubtful that the 10th Circuit ruling will apply in other states, as Dale Ho, director of the American Civil Liberties Union Voting Rights Project, stated, because under the Constitution a state must justify any law that burdens the right to vote.
"Kansas wasn't able to muster evidence that the law ... was necessary to prevent voter fraud," Ho said. So while the 10th Circuit ruling pertains only to five other states, it could prove valuable in other states that may be tempted to impose conditions to prevent that ever-elusive "voter fraud."
True believer to the end, Kobach told the AP he was unsurprised by the "clearly incorrect" appellate judges' ruling, "based on their judicial philosophy." He claimed they "disregarded the plain meaning of the voter registration law's text," making the decision — wait for it — the "essence of judicial activism."
Whether or not the state appeals, the best comment on the ruling came from Gov. Laura Kelly, the Democrat who thrashed Kobach in the 2018 gubernatorial election.
"What [the ruling] tells us is what we have thought for a long time: that we ought to be doing everything we can to encourage voting. If we have a problem with voting in the state of Kansas and across the country, it is that not enough people exercise their right. So I think eliminating any barriers to voting is a good thing."
Michael Loftin is a former opinion page editor for The Chattanooga Times.