Kansas once required voters to prove citizenship. That didn’t go so well

TOPEKA, Kan. — Republicans have made claims of illegal voting by non-citizens a centerpiece of their 2024 campaign messages and plan to push legislation in the new Congress to require voters to provide proof of U.S. citizenship. However, there is one place with a GOP supermajority where tying voting to citizenship seems like a non-starter: Kansas.

That’s because the state has been there, done that, and all but a few Republicans would rather not go there. Kansas imposed a proof-of-citizenship requirement over a decade ago that became one of the biggest political fiascos in the state in recent memory.

The law, passed by the state Legislature in 2011 and implemented two years later, ended up blocking the voter registrations of more than 31,000 US citizens who were otherwise eligible to vote. It was 12 percent of all those seeking to register in Kansas for the first time. Ultimately, federal courts declared the law an unconstitutional burden on voting rights, and it has not been enforced as of 2018.

Kansas offers a cautionary tale of how pursuing an electoral concern that is actually extremely rare risks upsetting a far greater number of people who are legally eligible to vote. The state’s top election official, Secretary of State Scott Schwab, championed the idea as a lawmaker and now says states and the federal government shouldn’t touch it.

“Kansas did this 10 years ago,” said Schwab, a Republican. “It didn’t go so well.”

Steven Fish, a 45-year-old warehouse worker from eastern Kansas, said he understands the motivation behind the law. In his thinking, the state was like a shopkeeper who fears being robbed and installs locks. But in 2014, after the birth of his son, now 11, inspired him to be “a little more responsible” and pursue politics, he didn’t have an acceptable copy of his birth certificate to register to vote in Kansas.

“The locks didn’t work,” said Fish, one of nine Kansas residents who sued the state over the law. “You caught a bunch of people who didn’t do anything wrong.”

Small issue, but wide support for a fix

Kansas’ experience appeared to receive little, if any, attention outside the state as Republicans elsewhere pursued proof-of-citizenship requirements this year.

Arizona passed a requirement this year, applying it to voting for local and state elections, but not for Congress or the president. The Republican-led US House passed a proof-of-citizenship requirement over the summer and plans to bring back similar legislation after the GOP won control of the Senate in November.

In Ohio, the Republican secretary of state revised the form that election workers use to contest voter eligibility to require those not born in the US to show naturalization papers in order to vote regularly. A federal judge refused to block the practice days before the election.

Also, sizable majorities of voters in Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and the presidential swing states of North Carolina and Wisconsin were inspired to amend their constitutions’ voting provisions, even if the changes were only symbolic. Provisions that previously stated that all US citizens can vote now say that only US citizens can vote – a meaningless distinction with no practical effect on who is eligible.

To be clear, voters must already prove they are US citizens when they register to vote, and non-citizens can face fines, jail time and deportation if they lie and are caught.

“There is nothing unconstitutional about guaranteeing that only American citizens can vote in American elections,” U.S. Rep. Chip Roy of Texas, the lead sponsor of the congressional proposal, said in an emailed statement to The Associated Press.

Why the Courts Rejected the Kansas Citizenship Rule

After Kansas residents challenged their state law, both a federal judge and a federal appeals court concluded that it violated a law that limits states to collecting only the minimum information necessary to determine whether someone is eligible to vote. This is a problem that Congress can solve.

The courts ruled that, with “pure” evidence of a real problem, Kansas could not justify a law that prevented hundreds of eligible citizens from registering for every noncitizen who was improperly registered. A federal judge concluded that the state’s evidence showed that only 39 noncitizens registered to vote from 1999 to 2012 — an average of just three a year.

In 2013, then-Kansas Secretary of State Kris Kobach, a Republican who has built a national reputation for championing tough immigration laws, described the possibility of voting for immigrants living in the U.S. illegally as a serious threat. He was elected attorney general in 2022 and still strongly supports the idea, arguing that the federal court rulings in the Kansas case “almost certainly got it wrong.”

Kobach also said a key issue in the legal challenge — people can’t fix problems with their records in a 90-day window — has likely been resolved.

“The technological challenge of how quickly you can verify someone’s citizenship is getting easier,” Kobach said. “As time goes on, it will get even easier.”

Would the Kansas law stand today?

The U.S. Supreme Court declined to hear the Kansas case in 2020. But in August, it split 5-4, allowing Arizona to continue enforcing the voting law in local and state elections while a legal challenge continues.

Seeing the possibility of a different Supreme Court decision in the future, U.S. Rep.-elect Derek Schmidt says states and Congress should pursue proof-of-citizenship requirements. Schmidt was the Kansas attorney general when his state’s law was challenged.

“If the same matter came up now and went to trial, the facts would be different,” he said in an interview.

But voting rights advocates reject the idea that a legal challenge would prove any different. Mark Johnson, one of the attorneys who fought the Kansas law, said opponents now have a model for a successful court battle.

“We know the people we can call,” Johnson said. “We know we have expert witnesses. We know how to try things like that.” He predicted “a flurry — a landslide — of litigation against this.”

Born in Illinois but cannot register in Kansas

Initially, the impact of the Kansas requirement seemed to fall hardest on young and politically unaffiliated voters. In the fall of 2013, 57 percent of voters blocked from registering were unaffiliated, and 40 percent were under 30.

But Fish was 30, and six of the nine residents who sued under the Kansas law were 35 or older. Three even presented citizenship documents and still did not register, according to court documents.

“There was not one of us that was actually illegal or misinterpreted or misrepresented any information or did anything wrong,” Fish said.

He was required to show his birth certificate when he tried to register in 2014 while renewing his Kansas driver’s license at an office in a Lawrence mall. A clerk would not accept the copy Fish had of his birth certificate. He still doesn’t know where to find the original, having been born on an Air Force base in Illinois that closed in the 1990s.

Several of the people who joined Fish in the lawsuit were veterans, all born in the U.S., and Fish said he was stunned that they could be prevented from registering.

Liz Azore, senior counsel for the nonpartisan Voting Rights Lab, said millions of Americans haven’t traveled outside the U.S. and don’t have passports that could act as proof of citizenship or don’t have immediate access to their birth certificates.

She and other voting rights advocates are skeptical that there are administrative fixes that will make the proof-of-citizenship law work better today than it did in Kansas a decade ago.

“It’s going to cover a lot of people from all walks of life,” Avore said. “It will disenfranchise large areas of the country.”