TOPEKA, Kan. (AP) – Republicans have made claims of illegal voting by non-residents a centerpiece of their 2024 campaign campaign messages and plan to introduce legislation in the new Congress requiring voters to provide proof of U.S. citizenship. Yet there is one place with a Republican Party supermajority where tying voting to citizenship seems like a non-starter: Kansas.
That's because the state has been there and done that, and all but a few Republicans would prefer not to go there again. Kansas imposed a proof-of-citizenship requirement more than a decade ago, which turned into one of the state's biggest political fiascos in recent history.
The law, which was passed by the state legislature in 2011 and implemented two years later, ultimately blocked the voter registrations of more than 31,000 U.S. citizens who were otherwise eligible to vote. That was 12% of everyone looking to register for the first time in Kansas. Federal courts ultimately declared the law an unconstitutional burden on voting rights, and it was not enforced since 2018.
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Kansas provides a cautionary tale of how pursuing an election issue that is in fact extremely rare risks disenfranchising a much larger number of people who are legally eligible to vote. The state's top elections official, Secretary of State Scott Schwab, defended the idea as a lawmaker and now says states and the federal government shouldn't tinker with it.
“Kansas did that 10 years ago,” said Schwab, a Republican. “It didn't turn out so well.”
Steven Fish, a 45-year-old warehouse worker in eastern Kansas, said he understands the motivation behind the law. In his thinking, the state was like a shop owner who is afraid of being robbed and installs locks. But in 2014, after the birth of his now 11-year-old son inspired him to be “a little more responsible” and follow politics, he did not have an acceptable copy of his birth certificate to register to vote in Kansas.
“The locks weren't working,” said Fish, one of nine Kansas residents who sued the state over the law. “You caught some people who did nothing wrong.”
A small problem, but broad support for a solution
Kansas' experience seemed to receive little or no attention outside the state as Republicans elsewhere this year raised requirements for proof of citizenship.
Arizona adopted a requirement this year and applied it to voting for state and local elections, but not for Congress or the president. The Republican-led U.S. House of Representatives passed a citizenship requirement this summer and plans to reintroduce similar legislation after the Republican Party won control of the Senate in November.
In Ohio, the Republican secretary of state has overhauled the form poll workers use when challenging voter eligibility, requiring those not born in the U.S. to show naturalization papers to vote regularly. A federal judge refused to block the pre-election practice days.
Also, significant majorities of voters in Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and the presidential swing states of North Carolina and Wisconsin were inspired to change their state constitutions' provisions on voting, even though the changes were only symbolic. Provisions that previously stated that all U.S. citizens could vote now say that only U.S. citizens can vote—a meaningless distinction with no practical effect on who is eligible.
To be clear, voters already have to prove they are U.S. citizens when they register to vote, and noncitizens can face fines, jail time, and deportation if they lie and are caught.
“There is nothing unconstitutional about ensuring that only American citizens can vote in American elections,” U.S. Rep. Chip Roy of Texas, the lead sponsor of the congressional bill, said in an emailed statement to The Associated Press.
Why the Courts Rejected Kansas' Citizenship Rule
After residents of Kansas challenged their state's 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 entitled to vote. That's an issue that Congress could resolve.
The courts ruled that Kansas, with “mere” evidence of an actual problem, could not justify a law that prevented hundreds of eligible citizens from registering for every noncitizen improperly registered. A federal judge concluded that the state's evidence showed that only 39 noncitizens registered to vote between 1999 and 2012 — an average of just three per year.
In 2013, then-Kansas Secretary of State Kris Kobach, a Republican who had built a national reputation by advocating for tough immigration laws, described the ability of immigrants living in the U.S. illegally to vote 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 were “almost certainly wrong.”
Kobach also said that a key issue in the legal challenge – people being unable to resolve issues with their registrations within a 90-day period – has likely been resolved.
“The technological challenge of how quickly can you verify someone's citizenship is getting easier,” Kobach says. “As time goes by, it will become even easier.”
Would Kansas law still hold up today?
The U.S. Supreme Court declined to hear the Kansas case in 2020. But in August it split 5-4 on allowing Arizona to continue enforcing its voting law in state and local elections while a legal challenge is underway.
Given the possibility of another 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 attorney general of Kansas when his state's law was challenged.
“If the same case were to arise now and be litigated, the facts would be different,” he said in an interview.
But voting rights advocates reject the idea that a legal challenge would play out differently. Mark Johnson, one of the attorneys who fought the Kansas law, said opponents now have a template for a successful legal fight.
“We know the people we can call,” Johnson said. “We know we have the expert witnesses. We know how to try this kind of thing.” He predicted “a wave – a landslide – of lawsuits against this.”
Born in Illinois, but cannot register in Kansas
Initially, the consequences of the Kansas requirement seemed to weigh most heavily on politically unaffiliated and young voters. In the fall of 2013, 57% of voters who could not register were unaffiliated and 40% were under 30 years old.
But Fish was in his mid-30s, and six of the nine residents suing under the Kansas law were 35 or older. Three of them even produced citizenship documents and were still not registered, court documents show.
“There wasn't any of us that was actually illegal or had misinterpreted or misrepresented information or done anything wrong,” Fish said.
He was required to present his birth certificate when he tried to register in 2014 while renewing his Kansas driver's license at an office in a Lawrence strip mall. A clerk would not accept the copy Fish had of his birth certificate. He still doesn't know where to find the original, as he was born on an Illinois Air Force base 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 dismayed that they could be prevented from registering.
Liz Azore, a senior adviser at the nonpartisan Voting Rights Lab, said millions of Americans have not traveled outside the U.S. and do not have passports that could serve as proof of citizenship or easy access to their birth certificates.
She and other voting rights advocates are skeptical that there are administrative solutions that will make a proof-of-citizenship law pass more smoothly 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 parts of the country.”
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Associated Press writer Julie Carr Smyth in Columbus, Ohio, contributed to this report.
