America's Most Right-Wing Elections Official Is Gearing Up to Start Prosecuting Voters
Kansas Secretary of State Kris Kobach sees election criminals lurking behind every polling booth. Now the state legislature is about to give him the prosecutorial power to do something about it.
For nearly half a decade, Kansas Secretary of State Kris Kobach has used the specter of elections fraud to pass some of the country's most restrictive voting laws. The legislation—including a strict voter ID law and a requirement that would-be voters show things like birth certificates to prove their citizenship—has put Kobach at the vanguard of a national push by Republican state lawmakers to make voting more difficult, in the name of preventing fraud at the polling booth.
To Kobach's opponents, and scores of voting-rights advocates across the country, the voting laws passed in Kansas and other states are a thinly veiled effort to impede ballot access for young people, minorities, and the poor—all voting groups that tend to lean Democratic.
Regardless of the intent, the effect of the laws in Kansas has been to keep people away from the polls. According to the New York Times, in 2014 Kansas's proof-of-citizenship requirement led to the suspension of voting registrations for 22,000 state residents who were not been able to produce the necessary documentation. A study released by the federal government last September found that the state's voter-ID law depressed turnout by 2 percent in the 2012 election.
Even as critics argue that the threat of voter fraud is virtually nonexistent, Kobach has vigorously maintained that election criminals lurk around every polling booth, blaming state prosecutors for not pursuing the allegedly plentiful cases that his office refers to them. And he's made repeated appeals to the state legislature to give his office—which oversees elections—special authority to prosecute cases of voter fraud.
Last week, in a 67-to-55 vote, Kansas's Republican-led House of Representatives took another step toward granting Kobach this wish, passing legislation that would allow him and future secretaries of state to bypass the state's attorney general to prosecute election crimes. The bill, which will further cement Kobach's status as one of the nation's most powerful secretaries of state, is currently awaiting the signature of Kansas's Republican governor, Sam Brownback.
"Once the authority is official, we will begin immediately to prepare cases for prosecution," Kobach said in an interview with the Associated Press.
Fearing Kobach will abuse his new power to advance Republican electoral gains in Kansas, Democrats and prosecutors across the state have sounded the alarm about the new law. "The secretary of state is basically supposed to keep a lot of records and supervise elections," said Kansas state representative Jim Ward, a Democrat. "But under Kris it's become incredibly, excessively partisan—and now we're going to have the fact that he can prosecute people."
Ward warned that Kobach's ramped-up authority could create an atmosphere of fear that will chill the electoral enthusiasm of voters who might worry that they could be prosecuted for violating technical provisions of Kansas's voting code."Like if you moved recently or got married or got divorced and you're confused about your voting status," Ward said. "It's voter intimidation."
The bill's sponsor, Republican state representative John Rubin, dismissed these fears. "Only those who have knowingly or intentionally, as the case might be, violated our [election laws] are the ones that can possibly be convicted on these statutes," Rubin said.
"Election fraud strikes at the very core of our democracy," he added, noting that since 1993, the Kansas secretary of state's office has investigated more than 200 cases of voter fraud, none of which, he claims, resulted in a "complete prosecution." Rubin pointed to several reasons for lax enforcement of election crimes: Prosecutors, he suggested, might be too busy with other cases to tackle these cases; in tight-knit small towns, he added, they may go easy on acquaintances who have committed voter fraud.
Kobach's assertion that local prosecutors have been ignoring endemic voter fraud has created an odd antagonism between the boisterously tough-on-crime elections official and the state's prosecutors. Rebutting Kobach, the state's association of county and district attorneys, has asserted that voter fraud is not a significant problem in Kansas.
"When you start creating specialized prosecutors, you always run the risk of abuse of that discretion," said Marc Goodman, the county attorney for Kansas's Lyon County who heads the Kansas County & District Attorneys Association. "With a specialized group you run the risk of a specialized agenda."
Goodman says that in his experience as a local prosecutor, election crimes are exceptionally rare, asserting that "we don't go around not prosecuting crimes willy-nilly." During his 15 years on the job, he said, he's only prosecuted one person for voter fraud, adding that the details of that case did not point to ubiquitous election crime.
"I believe he was somewhere between 68 and 74 years old and he had absolutely no criminal record," Goodman said of the person he prosecuted for voter fraud. "His thinking was getting a little fuzzy, and he basically had a little toot. He went a little mad and thought he could vote in two counties."
Goodman says that his office allowed the man to complete a diversion program that allowed him to avoid a criminal record. "There was no purpose in convicting him," Goodman said.
Thomas Drees, another Kansas county attorney, had a similar experience. He told me that in his 25-year career as a prosecutor, the Kansas secretary of state's office referred only one case of potential voter fraud, although he claimed state officials ultimately did not provide him with enough information to prosecute. According to Drees, that case involved a man who admitted to having voted in local elections in both Colorado and Kansas in 2012. Drees said that after asking Kobach's office for more information regarding the case, he heard nothing back.
After having a conversation with the man, Drees had him agree to cancel his voter registration in Colorado. "There was nothing that pointed to a systemic fraud issue," said Drees, who opposes giving Kobach prosecutorial authority.
"Most of the—quote—'voter fraud' that they referred to be looked at were situations where people had moved from one precinct to another and had not re-registered," Drees said of cases the secretary of state's office had sent to the elections office in Ellis County, Kansas, where he is the county attorney. "That's not voter fraud, that's people who forget to reregister after they move."
Kobach himself has struggled to produce compelling statistics to back up his assertions of rampant voter fraud. In October, he told the New York Times that"[w]e have had many, many cases of non-citizens registered to vote prior to our new law," referencing the proof-of-citizenship requirement. Yet, as the Times noted, during a hearing in the state legislature in January 2013, Kobach conceded that his office had identified only five non-citizens who had voted prior to the law's enactment.
Kobach's other claims of voter fraud—and related prosecutorial neglect—have also come under scrutiny. Last year, he harshly admonished the state's top federal prosecutor, US Attorney Barry Grissom, for not pursuing voter fraud cases that Kobach claimed to have passed along. But in February, the Associated Press learned that in fact Kobach had not referred a single case of voter fraud to Grissom's office. (Kobach claimed that he was referring to cases sent by his predecessor, although Grissom later said that his office had only received two such cases, neither of which were prosecuted.)
In 2013, Kobach, penned an editorial in the Wichita Eagle-Beacon that alleged that an election in Kansas City, Missouri, had been stolen by a candidate who "received about 50 votes illegally cast by citizens of Somalia." A subsequent Kansas City Star editorial challenged this assertion, citing court records that showed that, despite some colorful allegations filed in the local court, a county judge ruled that, "credible evidence proves that there was no voter misconduct and there was no voter fraud with regard to this election."
The scant evidence of voter fraud calls into question a 2011 Kansas law written by Kobach—and subsequently pushed forward by Rubin— that requires people wishing to register to vote for the first time to provide documentation proving US citizenship. In an interview with VICE, Rubin vigorously defend ed the law. "Much of what we do in modern society requires proof of citizenship, " he said. "If somebody doesn 't want to go through the minimal effort required to provide proof in order to vote, that 's their choice.
"I said at the time I carried the bill and I will say it now: The only way I can se someone oppose this bill is that they want to see people that are not legally entitled to vote—for example illegal aliens—be able to vote anyway," Rubin added.
Kobach is not the only Republican secretary of state to be accused of using allegations of election crimes as a blind to limit voting among certain populations. In Georgia, for instance, Republican Secretary of State Brian Kemp has faced off against voting rights activists on several occasions, including during an aggressive 2010 investigation into allegations of voter fraud in the small town of Quitman.
The probe, which Kemp's office conducted in conjunction with the Georgia Bureau of Investigation, was initiated after local get-out-the-vote organizers spurred a surge in turnout among local black voters that ushered in the county's first-ever majority-black school board. Twelve people were ultimately arrested, but after a four-year saga, the state was unable to win a single conviction. In September 2014, a jury in Quitman found one of the accused not guilty on all charges, and the state has since dismissed all remaining charges against the group.
More recently, Kemp has received intense criticism from black leaders after leveling voter fraud allegations against the New Georgia Project, a minority-focused voter registration group in the state. Kemp's investigation into that group is ongoing.
In Kansas, several people I spoke to said that, to their knowledge, no American state has given its secretary of state special authority to prosecute election crimes.
"It is our understanding that there is not another state that gives the secretary of state this authority," said Patrick Vogelsberg, a lobbyist for the Kansas County & District Attorneys Association, although he clarified that his group had not done a comprehensive survey. "We are at least not aware of another state that has done this."
Vogelsberg noted that one particularly striking aspect of the new law is that it changes the position that voters elected Kobach for in 2010, and again in 2014.
"At the beginning of this whole thing he was an administrator," Vogelsberg said. "Now he's a prosecutor."
Follow Spencer Woodman on Twitter.