The state of Kansas will try to revive a voter restriction championed by Kris Kobach that was repeatedly struck down by the courts.
Kansas Attorney General Derek Schmidt announced Tuesday that he is appealing the case challenging the law to the Supreme Court.
The law, a requirement for proof of citizenship in order to register to vote, was struck down in April by the U.S. Court of Appeals for the 10th Circuit, which said it was unconstitutional and a violation of the National Voter Registration Act.
The law was passed when Kobach was Kansas’ secretary of state, and he also led the defense of it at a 2018 trial, which resulted in the district court judge also ruling against it.
After the appeals court decision, it was unclear if Kansas would continue to fight the case. Kobach had always promised to take his defense of the law to the Supreme Court if necessary. But since his tenure as Kansas’ top elections official ended in 2019, the state has backed away from some of the other initiatives launched by Kobach, who is now running for U.S. Senate.
Schmidt said in a statement Tuesday that he and Kansas’ current Secretary of State Scott Schwab had “concluded there is a reasonable basis for appeal” to the Supreme Court.
“We are mindful that some who voted for this legislation now say they have changed their minds and complain about the cost of defending the law they supported,” Schmidt said, while suggesting those skeptics make their opinions known about whether the statute should be repealed. “But as long as the Legislature and the Governor leave this law on the books, we remain committed to giving it a full and robust legal defense.”
If the Supreme Court takes up the case, it would have implications for the handful of other states that have similar proof-of-citizenship requirements on their books. A Supreme Court decision in Kansas’ favor would likewise encourage other red states to adopt the restrictions.
During the trial, Kansas was only able to put forward a few dozen examples of noncitizens being improperly registered over nearly two decades and just five of those noncitizens actually cast ballots, according the Kansas claims made at the trial.
However, the restriction disenfranchised some 30,000 would-be-voters who had not presented the required documents and thus were removed from the rolls due to the requirement. During the litigation, the state set up an arduous bureaucratic process for eligible voters who did not have the required documents to get registered. The appeals court said that it agreed “with the district court’s finding that [the process’] byzantine nature ‘adds, not subtracts, from the burdensomeness of the law.’”
