It was just short of a year ago that I told you about the lawsuit filed by the ACLU and League of Women Voters against Kansas Secretary of State Kris Kobach in Kansas state court, Belenky v. Kobach, seeking an injunction against the “dual election system” established by Kobach to disenfranchise citizens of their right to vote in state and local elections if they had registered to vote using the federal voter registration form (Arizona Secretary of State Ken “Birther” Bennett established a similar dual election system in Arizona).
Because there was a parallel case in another court, Kobach v. U.S. Election Assistance Commission in the Tenth Circuit Court of Appeals, and the closeness of the primary election date, Shawnee County District Court Judge Franklin Theis denied the injunction. The judge did not rule on the merits of the case. Kansas judge approves dual election system in Kansas. Both Kansas and Arizona conducted dual elections in 2014 based upon the voter registration form that voters used to register to vote.
A unanimous panel of the 10th Circuit Court of Appeals ruled in favor of the Election Assistance Commission in Kobach v. U.S. Election Assistance Commission. On Monday, the U.S. Supreme Court denied the appeal from this order without comment, a surprising turn of events given that Justice Antonin Scalia suggested the convoluted legal process to Kansas and Arizona in his earlier Supreme Court opinion in Arizona v. The Inter Tribal Council of Arizona, Inc.
So what is the status of Belenky v. Kobach (2013-CV-001331) in Kansas state court?
The Lawrence Journal-World reports:
[A] separate lawsuit is pending in state court that challenges Kobach’s policy of not allowing people who registered using the federal form to vote in state and local races. That case, which is pending before Shawnee County District Judge Frank Theis, was filed by the American Civil Liberties Union and the League of Women Voters.
“Now that the Supreme Court has said the federal form doesn’t have to be changed, the question is teed up for him to answer,” said Mark Johnson, a lecturer on election law at Kansas University who also serves on the board of the ACLU of Kansas. “On the constitutional argument, there is the possibility that we could have a bifurcated election system.”
During the 2014 elections, while both the state and federal cases were still pending, Kobach’s office conducted a “dual” election system in which people who had registered to vote and shown proof of citizenship using the state form were allowed to vote in all races, but people who used the federal form could only vote in federal races.
Attorneys for the ACLU asked Theis in July 2014 to block Kobach from holding dual elections. But with state and federal primary elections only a month away, and with a related case still pending at that time before the 10th Circuit, Theis declined to step in.
The 10th Circuit did not issue its decision, declining to force the EAC to provide revised federal forms, until Nov. 7 last year, three days after the general election.
Since then, there has been little action on the ACLU lawsuit in Shawnee County, in part because Theis was also the presiding judge on a three-judge panel that oversaw the massive school finance lawsuit. A ruling in that case was just handed down Friday.
As a result of the proof-of-citizenship requirement, more than 23,000 people who’d failed to provide the required documents were prevented from voting in 2014 because their registrations had been placed “in suspense.”
Meanwhile, a small number of people who’d registered using the federal form were only allowed to vote in federal races.
However, if Judge Theis rules in the ACLU lawsuit that the state cannot operate a dual election system, that would open a door to negating the proof of citizenship law because voters could merely bypass it by registering to vote using the federal form.
According to the online court docket for this case, motions for summary judgment are pending, and a certification that motion is submitted for decision filed on February 13, 2015 was the last entry. So Shawnee County District Court Judge Franklin Theis needs to rule on the pending motions for summary judgment and, if not granted, to lift a stay order and issue a scheduling order for discovery and a trial date. This case has a long way to go with appeals.
In the Arizona Republic today, High court declines Ariz. suit on voter registration, Sam Wercinski of the Arizona Advocacy Network was quoted saying:
[Wercinski] said the impact of the ruling is that Arizona cannot have two classes of voters — those who get a full ballot and those who don’t — but he said the court’s action, or inaction, leaves that question open to a challenge.
He declined to say if his group would sue to end the dual-track system, which he called “another waste of limited tax resources.”
The system cost $250,000 in Maricopa County alone, The Republic reported last fall, as the county had to print two sets of ballots, even though only a fraction of voters qualified for the federal-only” ballot.
Secretary of State Michele Reagan’s office on Monday said the dual-track system would continue for next year’s elections.
But what does the Arizona ACLU and League of Women Voters have to say about suing to end the dual election system in Arizona?