Kansas’ dual election system ruled unlawful; whither Arizona’s dual election system?

NoVoteIn September of Last year I posted an update on the status of Belenky v. Kobach (2013-CV-001331), the lawsuit in Kansas state court challenging the “dual election system” imposed by Secretary of State Kris Kobach after he lost his legal challenge to the federal voter registration form. Arizona Secretary of State Ken “Birther” Bennett imposed the same “dual election system” here in Arizona, which has been continued by Arizona’s queen of voter suppression, Secretary of State Michele Reagan. Update on ‘dual election system’ lawsuit in Kansas.

The American Civil Liberties Union of Kansas filed a motion for summary judgment in state court to end the two-tiered voter registration system that Secretary of State Kris Kobach created.

The Kansas state court recently ruled on that motion, granting the ACLU’s motion for summary judgment. Rick Hasen at Election Law Blog reported In Loss to Kobach, Kansas Court Strikes Down Two-Tier Voter Registration in Kansas:

A state court in Kansas today issued a 30 page opinion granting summary judgment to two Kansas voters who registered to vote in Kansas using a federal form but who had been denied the right to vote in state elections by Kansas Secretary of State Kris Kobach.

The background: Federal law requires states to accept a “federal form” for voter registration (promulgated by the U.S. Election Assistance Commission) for voting in federal elections. Kansas Secretary of State Kris Kobach, a fraudulent fraud squad star member, challenged the authority of the federal government to require Kansas to accept that form, arguing that states had the final say. Because those registering with the federal form did not have to provide proof of citizenship (as normal registration in Kansas now did), Kobach argued he did not need to accept the federal form.  The case went all the way to the Supreme Court, and then through further litigation in the 10th Circuit (with cert. denied by the Supreme Court), establishing that Kobach was wrong: Congress had the authority under the U.S. Constitution’s Elections Clause to require states to accept the federal form for voting in federal elections, even if the federal form did not provide all the information a state wanted.

Kobach’s response to this ruling was to say that anyone who registered using the federal form would only be registered to vote in federal elections, and could not vote in state elections. There have been some legal challenges filed to this two-tiered system, and in today’s ruling, the Kansas court held the two tiered system violated state law (and federal law too it appears, although the analysis on this point is not clear to me.)

Kobach’s office is reviewing the ruling and hasn’t announced whether there will be an appeal.

The Court in its ruling (above) found that actions taken by the Kansas Secretary of State “to limit and compromise the voting rights of these two Plaintiffs because of their personal election to register by way of the ‘Federal Form’ were wholly ad hoc and ultra vires and without the authority of any Kansas statute and were clearly beyond the scope of any existing regulatory authority, if any, that had been exercised to such end by the Secretary of State.”

The Court further found that “the Defendants cannot erase the Plaintiff’s past injury — the ignominity of having, and the now perpetual overruling of, their choice of how to lawfully be registered to vote under existing Kansas and Federal law.”

The Court further found that “Most importantly, the Defendant’s position ignores the fact that no Kansas law sanctions a challenge to a ballot voted by a ‘Federal Form’ registrant merely because they are a ‘Federal Form’ registrant.” Further, “[T]he Secretary is not empowered to determine or declare the method of registration or crate a method of ‘partial registration’ only.” “In Kansas, a person is either registered to vote or he or she is not. By current Kansas law, registration, hence the right to vote, is not tied to registration.”

“Hence, K.S.A. 23-2509 (a)’s authorization for the use and acceptance of the ‘Federal Form’ as a valid, recognized means of registration should therefore stand as unfettered and uncompromised until the law is changed, hence, presently mandating such residents to be entered into the registration books. The legislature has not yet changed the governing law. The Secretary of State is not a lawmaker, only and administrator of the law. As such, any challenge to a ‘Federal Form’ registrant is ipso facto without legal foundation and merely a product of the Secretary’s erroneous and ultra vires actions, whether issued through instructions or rules and regulations.”

Arizona’s dual election system — piggybacked upon the Kansas dual election system — is equally suspect and unlawful for the same legal reasons stated by the Kansas state Court.

Arizona’s Secretary of State has been deferring to the Kansas Secretary of State and the outcome in this case in Belenky v. Kobach (2013-CV-001331) as legal justification for Arizona’s dual election system. Arizona’s dual election system should now be suspended as unlawful. It should not require voting rights advocates to file a separate lawsuit in Arizona to suspend the dual election system in Arizona.

I’m surprised that this ruling has not received media coverage in Arizona and  Secretary of State Michele Reagan has not been called to account for Arizona’s suspect dual election system.

3 responses to “Kansas’ dual election system ruled unlawful; whither Arizona’s dual election system?

  1. Arizona v. Inter-Tribal Council explicitly held that its ruling only applied to registration for Federal Elections, and did not require that the Federal Form without proof of citizenship be accepted for Arizona state elections.

    The interesting question is whether Federal Form registrants without proof of citizenship will be allowed to vote for Presidential Electors, who are technically state officials even thought the President is a Federal officer…

  2. Sen. John Kavanagh

    The decision of a STATE court in another state should be honored in Arizona. Are you serious? That policy would cause chaos and conflicting confusion.

    • Arizona has been piggybacking off Kansas in this case. That makes this case persuasive precedent. I am well aware of the jurisdictional issue. The Secretary of State can suspend the dual election system, or someone like the ACLU or the Arizona Advocacy Network will sue on the same legal theories in Kansas. How about doing the right thing just once instead of costing this state money on litigation for unlawful GOP voter suppression? You have already lost once on your buddy Kobach’s Prop. 200 (2004) to require proof of citizenship documents for voter registration in Arizona v. Inter Tribal Council of Arizona. If this Kansas case goes as far as SCOTUS, you will lose again.