The most frightening development in the United States Wednesday wasn't a rise in COVID-19 cases or the spiraling federal debt from the virus-generated recession but may have been a federal appeals court decision that struck down a Kansas voter registration law requiring proof of citizenship.
Although the ruling applied only to the six states of the 10th Circuit, Colorado, New Mexico, Oklahoma, Utah and Wyoming, in addition to Kansas, it could open the way for an huge increase in voter fraud if the laws in other judicial circuits are also challenged.
The ruling does not change federal law that says noncitizens can't vote but says proof of citizenship cannot be required to determine whether a citizen is eligible to vote. In other words, noncitizens won't have to produce a birth certificate or a passport to fulfill voting requirements but could just state they are a citizen on their application.
If that is the case, we don't know how voting agencies will distinguish between citizens and noncitizens if noncitizens are able to produce other proper documentation such as age, state residency and lack of felony conviction status.
Former Kansas Secretary of State Kris Kobach had the same concerns, which he expressed in an opinion in Breitbart.
"The Court seemed oblivious to the fact that it is very difficult to determine whether a person on the voter rolls is an alien or a citizen," he wrote. "One needs some sort of external information — like the person applying for a driver's license only issued to aliens, or the person declining jury duty because he's an alien — before one can conclude that he's not a citizen."
The ruling is ideal for Democrats, who increasingly have pushed for fewer and fewer voting requirements. It is why they oppose voter identification laws, why they dislike purging voters rolls and why they prefer Election Day voter registration.
The Kansas secretary of state's office has not decided whether to appeal the ruling to the United States Supreme Court. Kobach called the ruling a case of "judicial activism" that set "aside the plain meaning of the law" and declared it was "highly likely" it would be overturned by the high court.
Kansas, in its 2013 law requiring proof of citizenship, had said it wanted to guard against noncitizens attempting to register to vote. At the time, nearly every Republican in the state legislature voted for the law and more than two-thirds of Democrats did. However, the court said it found only 67 noncitizens had registered or attempted to register to vote in the last 19 years.
Kobach, in his response, said the state had found more than 100 aliens had registered and said an expert witness had used statistical sampling to conclude the true number was likely in the thousands.
The court, affirming a 2018 federal court ruling in the case, said it agreed "in the abstract" in the state's legitimate interest in counting only eligible voters, but it said the state did not produce enough evidence to burden apparently eligible voters. It said the voting applications of some 31,089 otherwise apparently eligible voters were canceled or suspended because they could not produce the proper citizenship documentation, even when the law gave them 90 days to do so.
The appellate panel said the citizenship requirement violated the Equal Protection Clause of the 14th Amendment to the Constitution and the National Voter Registration Act, also known as the motor voter law. However, Kobach maintained that nowhere in the the motor voter law does it mention requirements about proof of citizenship being needed or not needed.
Indeed, he said, the Democratic sponsor of the motor voter bill, Sen. Wendell Ford, D-Kentucky, said on the floor of the Senate in 1993 that "there is nothing in the bill now that would preclude the State's requiring presentation of documentary evidence of citizenship."
Three other states, like Kansas, have proof of citizenship requirements, not just an acknowledgement of citizenship on a registration application. Two of those are Alabama and Georgia.
Left-leaning organizations like the American Civil Liberties Union, which filed the Kansas case, are likely to be coming for the laws in those Tennessee neighboring states. We hope they're ready and also that Kansas will appeal its case to the Supreme Court.
We want every eligible citizen to be able to vote, and we want registration to be easy but accurate. The federal appeals court has just made it a lot harder for registration in several states to be the latter.