TOPEKA, Kan. – Republicans made claims about illegal voting by noncitizens a centerpiece of their 2024 campaign messaging and plan to push legislation in the new Congress requiring voters to provide proof of U.S. citizenship. Yet there’s one place with a GOP supermajority where linking voting to citizenship appears to be a nonstarter: Kansas.
That’s because the state has been there, done that, and all but a few Republicans would prefer not to go there again. Kansas imposed a proof-of-citizenship requirement over a decade ago that grew into 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 U.S. citizens who were otherwise eligible to vote. That was 12% of everyone seeking to register in Kansas for the first time. Federal courts ultimately declared the law an unconstitutional burden on voting rights, and it hasn’t been enforced since 2018.
Kansas provides a cautionary tale about how pursuing an election concern that in fact is extremely rare risks disenfranchising a far greater number of people who are legally entitled to vote. The state’s top elections official, Secretary of State Scott Schwab, championed the idea as a legislator and now says states and the federal government shouldn’t touch it.
“Kansas did that 10 years ago,” said Schwab, a Republican. “It didn’t work 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 store owner who fears getting 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 didn’t have an acceptable copy of his birth certificate to get registered 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.”
A small problem, 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 enacted a requirement this year, applying it to voting for state and local elections but not for Congress or president. The Republican-led U.S. House passed a proof-of-citizenship requirement in 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 poll workers use for voter eligibility challenges to require those not born in the U.S. to show naturalization papers to cast a regular ballot. A federal judge declined 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 state constitutions’ provisions on voting even though the changes were only symbolic. Provisions that previously declared 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 must attest to being U.S. citizens when they register to vote and noncitizens can face fines, prison 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 leading sponsor of the congressional proposal, said in an email statement to The Associated Press.
Why the courts rejected the Kansas citizenship rule
After Kansas residents challenged their state’s law, both a federal judge and federal appeals court concluded that it violated a law limiting states to collecting only the minimum information needed to determine whether someone is eligible to vote. That’s an issue Congress could resolve.
The courts ruled that with “scant” evidence of an actual problem, Kansas couldn’t justify a law that kept 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 had registered to vote from 1999 through 2012 — an average of just three a year.
In 2013, then-Kansas Secretary of State Kris Kobach, a Republican who had built a national reputation advocating tough immigration laws, described the possibility of voting by immigrants living in the U.S. illegally as a serious threat. He was elected attorney general in 2022 and still strongly backs the idea, arguing that federal court rulings in the Kansas case “almost certainly got it wrong.”
Kobach also said a key issue in the legal challenge — people being unable to fix problems with their registrations within a 90-day window — has probably been solved.
“The technological challenge of how quickly can you 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 refused to hear the Kansas case in 2020. But in August, it split 5-4 in allowing Arizona to continue enforcing its law for voting in state and local elections while a legal challenge goes forward.
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 arose now and was litigated, the facts would be different,” he said in an interview.
But voting rights advocates dismiss the idea that a legal challenge would turn out differently. Mark Johnson, one of the attorneys who fought the Kansas law, said opponents now have a template for a successful court fight.
“We know the people we can call,” Johnson said. “We know that we’ve got the expert witnesses. We know how to try things like this.” He predicted “a flurry — a landslide — of litigation against this.”
Born in Illinois but unable to register in Kansas
Initially, the Kansas requirement’s impacts seemed to fall most heavily on politically unaffiliated and young voters. As of fall 2013, 57% of the voters blocked from registering were unaffiliated and 40% were under 30.
But Fish was in his mid-30s, and six of the nine residents who sued over the Kansas law were 35 or older. Three even produced citizenship documents and still didn’t get registered, according to court documents.
“There wasn’t a single one of us that was actually an illegal or had misinterpreted or misrepresented any information or had done anything wrong,” Fish said.
He was supposed to produce his birth certificate when he sought to register in 2014 while renewing his Kansas driver’s license at an office in a strip mall in Lawrence. A clerk wouldn’t 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 joining 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, a senior adviser to the nonpartisan Voting Rights Lab, said millions of Americans haven’t traveled outside the U.S. and don’t have passports that might act as proof of citizenship, or don’t have ready access to their birth certificates.
She and other voting rights advocates are skeptical that there are administrative fixes that will make a proof-of-citizenship law run 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’s going to be disenfranchising large swaths of the country.”
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Associated Press writer Julie Carr Smyth in Columbus, Ohio, contributed to this report.
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