The Urban Lawyer

In Purgatory: The Unconstitutionality of the Kansas Voting System

by Julie Wikle Sims

Julie Wikle Sims is a currently a Juris Doctor candidate at the University of Missouri-Kansas City School of Law, Class of 2018. Edward Cantu is a professor at the University of Missouri-Kansas City School of Law, and he assisted Sims in authoring this Comment. Sims thanks Professor Edward Cantu at the University of Missouri - Kansas City School of Law for advising on the Comment, and she thanks her editors Joseph Bearden and Betsy Miller.


I.   Introduction

IN   SEPTEMBER   2015,  36,674  KANSANS   WERE   IN   “VOTER   PURGATORY.”1 Their right to vote had been suspended because they had difficulty pro- viding all the documentation required by the voter registration system of Republican Kansas Secretary of State Kris Kobach.2 After filling out the registration form, Kansans are put on  a  waiting  list  until their application is approved by a county election officer or the Secretary of State’s office, but until then, they cannot vote and they remain in what has been called voter purgatory.3 For proof-of-citizenship, federal law requires only that voter registrants check a box indicating that they are U.S. citizens, subject to charges of perjury.4 The Kansas Secure and Fair Elections (SAFE) Act of 2011 requires Kansas registrants to go above and beyond the federal requirements. New voters in Kansas are forced to show proof-of-citizenship in the form of birth certificates, passports, driver’s licenses, naturalization documents, or hospital records of birth.5 This system of voting, with its unnecessary additional requirements, disenfranchises specific groups of Kansans.

This article argues the constitutional invalidity of the SAFE Act voting restrictions in four ways. First, the National Voter Registration Act of 1993 has invalidated restrictive voting requirements in both Arizona and Kansas federal courts, as well as in front of the United States Supreme Court, regarding the restrictions in federal elections.6 Second, an argument that proof-of-citizenship requirements are an indirect poll tax in violation of the Twenty-fourth Amendment, though  not a bullet-proof argument, suggests that the SAFE Act regulations  in federal elections are unconstitutional. Next, in state and local elections, the Voting Rights Act of 1964 preempts the SAFE Act. Finally, the SAFE Act is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Circumstantial evidence proves the Kansas legislature’s intent was to discriminate against minority voters when drafting and passing the SAFE Act.

II.     Background

As of March 29, 2016, approximately 22,000 Kansas registrants remained in voter purgatory or had been purged from the registration system altogether by means of the ninety-day rule.7 The ninety-day rule kicks Kansans off the “suspense” list after ninety days if adequate proof-of-citizenship is not recorded.8 A regulation effective October 2, 2015 allows applications that are labeled “incomplete” to be cancelled from the State suspense list of applicants.9 Cancelled applicants are  not eligible to vote10 but may start the application process over.11 Secretary Kobach purports to believe the system prevents voter fraud and promotes integrity in the election process.12 The voter fraud that many worry about includes “impersonation fraud, voting under fictitious voter registrations, double-voting by individuals registered in more than one state, and voting by undocumented immigrants.”13 In reality, voter fraud is rare.14 In eighteen years, only three non-citizens were caught voting15 and fourteen non-citizens were caught registering to vote16 in Kansas. Many critics believe the system is a thinly veiled attempt at keeping the “wrong” people away from the ballot box.17 Most on the voter purgatory list are young first-time voters, the poor, and minorities.18 In effect, the Kansas Secure and Fair Elections (SAFE) Act of 2011 disenfranchises minorities and the poor because they are less likely to have a driver’s license or identification card.19 Minorities and those in poverty also happen to be more likely to vote Democratic, making it difficult for these groups to elect politicians who represent their views to the Republican-dominated Kansas legislature.20

The voting situation in Kansas has been an ongoing controversy for several years.21 The debate actually began in Arizona in 2004 when Arizona passed Proposition 200, its own proof-of-citizenship voting legislation that closely resembled Kansas’s 2011 SAFE Act.22 The similarity of the states’ voting requirements can be attributed to the fact that Secretary Kobach played a large role in drafting Arizona’s Proposition 200.23 Once the constitutionality of Arizona’s law was in question,24 Kansas created a two-tiered registration system that skirts issues of constitutionality in federal elections by creating separate levels of voting registration.25 Kansans who can only conform to the federal requirements can only vote in federal elections, while Kansans who can provide the SAFE Act requirements and are  approved in time can  vote in state and local elections in addition to federal elections.26

On May 17, 2016, United States District Judge Julie Robinson granted a temporary injunction allowing the 18,000 Kansans still  in voter purgatory at that time to vote in federal  elections.27  This  temporary injunction was upheld by the Tenth Circuit  Court  of  Appeals  on June 10, 2016.28 While the latest court ruling  allows  all  Kansans  in  voter purgatory to be registered to vote in federal elections, the controversy is nowhere near its end. The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments to the United States Constitution secure the right to vote for all U.S.  citizens  over the age of eighteen regardless  of their race or sex.29 Kansans who are otherwise qualified to vote are  being denied that right. Suppressing the right  to  vote  is  dangerous  for the health of a democracy.30 Disenfranchising individuals weakens a democracy because the candidates elected  are  not  accurately  representing all citizens.31 Chief Justice John Roberts agrees that the right to vote “is preservative, I think, of all the other rights. Without access to the ballot box, people are not in a position to protect any other rights that are important to them.”32

Preventing the insignificant amount of voter fraud that has occurred in Kansas does not outweigh disenfranchising thousands of people with the two-tiered voter system.33  Qualified voters in Kansas must  be allowed to exercise their fundamental right to vote.  Their voices and the integrity of American democracy can be protected by acknowledging the unconstitutionality of the Kansas voting system. Many critics agree that the two-tier voting system with its proof-of- citizenship requirements should be invalid as a matter of public policy.34 However, more than just poor public policy is at work in the SAFE Act’s proof-of-citizenship requirements. Kansas’s SAFE Act unconstitutionally suppresses the right to vote because it violates the Twenty-fourth Amendment’s ban on poll taxes and the Fourteenth Amendment’s Equal Protection Clause and is preempted by the National Voter Registration Act of 1993 (NVRA) and the Voting Rights Act of 1964 (VRA).


III.     The SAFE Act Requirements in Federal Elections

The National Voter Registration Act of 1993 (NVRA) preempts the SAFE Act, and the Twenty-fourth Amendment’s ban on poll taxes make the SAFE Act’s requirements unconstitutional. The Twenty- fourth Amendment and the NVRA apply to federal elections only.35

A.   National Voter Registration Act

In circuit courts and United States Supreme Court cases, the NVRA has struck down Secretary Kobach’s voting requirements in federal elections.36 The NVRA requires states to “accept and use” the federal form for voting registration.37 The purpose of this loose requirement is to “increase the number of eligible citizens who register to vote in elections for Federal office.”38 The Kansas SAFE Act violates the NVRA by enacting more registration requirements than the simple federal form, where the only proof-of-citizenship required is a signed oath.39 Proof-of-citizenship that goes beyond a signed oath under penalty of perjury is in violation of the NVRA.40 Kansas’s requirement of special documentation including birth certificates and passports for federal elections therefore violates federal law.

In 2014, the Tenth Circuit Court ruled that Secretary Kobach’s suppression of federal voter registration was unconstitutional.41 The State of Kansas had requested an addition to the federal form that would re- quire proof-of-citizenship documentation as part of the original federal form used in Kansas. The Election Assistance Commission (EAC) rejected Kansas’s request, and Kansas brought suit.42 While the District Court decided the SAFE Act was not in violation of the NVRA,43 the Tenth Circuit reversed that decision, declaring that the EAC did not have a duty to add all of a state’s requested text for concrete evidence to that state’s federal registration form.44 The Tenth Circuit relied on a Supreme Court case concerning Arizona’s similar voting requirements, in which the Court said “if federal enactments ‘precluded a State from obtaining information necessary for enforcement,’ this ‘would raise serious constitutional doubts.’ ”45  The holdings in these cases show that the NVRA is a successful argument against proof-of-citizenship voting requirements in federal elections.

B.   The Poll Tax

The SAFE Act proof-of-citizenship requirements in federal elections  can also be struck down by the Twenty-fourth  Amendment  because  the cost of obtaining the required documents is a burden on the registrant that effectively becomes a poll tax.46 The Twenty-fourth Amendment declares that the right of a citizen to vote in any federal primary election or presidential or Congressional election shall not be impaired or denied by failure to pay a poll tax or any other tax.47 The Supreme Court in Harper v. Virginia Board of Electors has said that “any fee” as an electoral standard is unconstitutional.48 Costs of required documentation would  be  considered  “indirectly  equivalent”  to  Harper’s  “any  fee.”49 While the SAFE Act is not imposing a direct fee on registrants, the documentation that the law demands can be expensive to obtain. Birth certificates are between $10 and $50 to order, depending on the state.50 Passports are much more expensive, currently costing an adult  $135 after processing fees.51

The leading Supreme Court case on the Twenty-fourth Amendment’s poll tax ban supports the argument that proof-of-citizenship is an indirect poll tax.52 The statute under review in Harman v. Fors- senius required voters either to pay a $1.50 annual poll tax or to go through a tedious procedure to record  residency.53  The poll tax was  an obvious violation of the Twenty-fourth Amendment, but the alter- native certificate of residence was at issue. The Court held that a state may not “constitutionally confront the federal voter with a requirement that he either pay the customary  poll  taxes  as  required  for state elections or file a certificate of residence.”54 The required residence certificate was ruled a material burden that “perpetuat[ed] one of the disenfranchising characteristics of the poll tax which the Twenty-fourth Amendment was designed to eliminate.”55 The SAFE Act should be declared unconstitutional under Harman because proof-of-citizenship, while not an alternative to a poll tax, is nonetheless a material burden that perpetuates the disenfranchisement and violation of voting rights that the Twenty-fourth Amendment was adopted to end. Documenting proof of citizenship is similar to filing   a certificate of residence since both require the registrant to produce documentation authenticating state residency. The two are not exactly parallel as one does not have to be a U.S. citizen to be a resident of a state.56 Nevertheless, providing proof of citizenship places as much of  a burden on the right to vote as does filing certificates of residency.

In addition to the differences between proof-of-citizenship documents and proof-of-residency documents, the argument that proof of citizenship is an unconstitutional poll tax has other pitfalls.57 In Gonzales v. Arizona, the Ninth Circuit rejected the argument that proof-of- citizenship is equivalent to a poll tax or a material burden like the certificate of residence in Harman, saying:

Although obtaining the identification required under [the statute requiring proof-of- citizenship] may have a cost, it is neither a poll tax itself (that is, it is not a fee imposed on voters as a prerequisite for voting), nor is it a burden imposed on voters who refuse to pay a poll tax.58

The Supreme Court has also upheld photo ID voting requirements even after acknowledging that photo IDs usually require proof of citizenship.59 In Crawford v. Marion County Election Board, the Court did a balancing test where the state  interest  of  preventing  voter fraud outweighed the burden placed on registrants.60 Photo ID requirements were not found to be material burdens on the right to vote.

If proof of citizenship is declared unconstitutional as a poll tax, this may open the door to a lot of new litigation. If proof of citizenship is a poll tax, perhaps photo ID and travel expenses to polling places are unconstitutional, too. Courts may be unwilling to overturn proof of citizenship due to this line-drawing problem.61 One solution to this problem may be the creation of some sort of expense threshold. A line could be drawn between a few dollars of gas money or public transit expenses and a passport or birth certificate costing between $50 and $135. In other words, the more expensive a  voting  obstacle,  the  more material the burden would be on the right to vote. Some states may be leaning this way as they are relaxing their photo ID requirements.62 As states question the constitutionality of photo ID requirements under the Twenty-fourth Amendment, the constitutionality of proof-of- citizenship requirements should also be questioned.

IV.   The SAFE Act Requirements in State and Local Elections

While the NVRA and the Twenty-fourth Amendment cannot invalidate Kansas restrictions on state and local elections in the two-tiered system, the Voting Rights Act and the Equal Protection Clause of  the Fourteenth Amendment can.

A.   Voting Rights Act of 1964

Another argument gaining popularity in the fight against voter restrictions is that such restrictions violate the Voting Rights Act of 1964 (VRA).63 Section 2 of the VRA prohibits laws and practices that in effect violate the right to vote through discrimination based on race or national origin.64 In 2013, Shelby County v. Holder overruled Section 5 of the VRA which required preclearance of any voting law passed in certain states, mostly in the South.65 This decision opened the door to discriminatory restrictions in the form of voter ID laws and proof-of- citizenship requirements.66

A VRA argument was asserted in Gonzalez v. Arizona to challenge Proposition 200’s polling place provision, which required proof of citizenship be displayed at polls on election day in addition to requiring proof of citizenship at the time of registration.67 The Ninth Circuit rejected the VRA argument because Arizona’s polling place provision did not pass the  nine-factor  totality-of-circumstances  test.68  This  test, derived directly from the Act’s language, requires a showing “based on the totality of circumstances” that election processes are not equally accessible to protected classes as they are to whites.69  The factors include the history of discrimination in that state’s election processes and whether the state’s history is “racially polarized,” how many minorities have been elected in that state in the past, the responsiveness of elected officials to minority groups’ needs, and the state’s historical record of discrimination in other areas such as education and employment.70 The regulation or practice must have a discriminatory impact.71 The court ruled that the plaintiffs, Gonzalez and the Inter Tribal Council of Arizona, provided no such evidence. Although the plaintiffs successfully proved a history of discrimination against Latinos in Arizona,72 they did not show a causal relationship between Proposition 200 and a “statistically significant impact on Latino voters.”73 In the cases challenging the Kansas SAFE Act in 2014, plaintiffs did not offer the VRA as an argument,74 nor was it proposed in front of the Supreme Court in 2013 to challenge Arizona’s registration.75

A causal relationship between the SAFE Act and a burden on the voting rights of minorities exists in violation of the VRA. Together with satisfaction of a majority of the nine factors of the totality-of- circumstances test, a proven discriminatory effect invalidates proof-of-citizenship requirements in Kansas. The same evidence proving discriminatory effect in support of an Equal Protection argument would also support a VRA argument against the SAFE Act.

B.   Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment by design protects citizens from racially discriminatory laws.76 Different treatment of groups of people make an Equal Protection argument plausible. To invoke an Equal Protection argument, classification of the groups of people being treated differently must be distinguished first.77 The classification dictates how stringently a court reviews the law.78 A suspect class is a group of people, usually a “discrete and insular” minority, deserving of a higher level of scrutiny when a law may be discriminatory against them.79 Racial minorities are an automatically suspect class with a historical need for greater protection    by “more exacting judicial scrutiny.”80 Therefore, if a law discriminates against a racial minority, the  court  reviews  the  law strictly, and laws rarely survive strict scrutiny.81 A law or practice may be facially race-neutral and yet have a disparate impact on minorities.82 In order to trigger racial classification, both a discriminatory effect of the law and a discriminatory intent behind the law must be shown.83

An illustration of a discriminatory effect is Yick Wo v. Hopkins, where city ordinances that were facially race-neutral had a discriminatory effect on Chinese laundry businesses, and the ordinances were ruled unconstitutional.84 The Yick  Wo  Court declared  that a law has  a discriminatory effect when the statute has an egregious impact on one group of people over another, meaning a mild impact on a minority would not satisfy the effect prong of the racial  discrimination test.85 Discrimination does not have to be express or appear on the  face of the statute.86 “A statute, otherwise neutral on its face, must not be applied so invidiously as to discriminate on the basis of  race.”87 A law is applied invidiously when it “bears more heavily on one race than another.”88 The effects of a law cannot usually be proven easily, however, because proving a disparate impact on a racial minority is highly act sensitive. For example, the Washington v. Davis Court ruled that a facially neutral law requiring preliminary reading tests for all new police officer applicants did not have discriminatory intent although it happened to have a harsher effect minorities.89 Laws that appear neutral are constitutional when the discriminatory effect is a coincidence or a side effect of the law but not the purpose of the legislation.90

As Washington v. Davis implies, discriminatory effects of the law on minorities is not enough to show a racial classification is required for review of the law.91 Discriminatory intent must be proven.92  This is no easy task.93 For example in Palmer v. Thompson, even when it was an open secret that the state closed pools to avoid integration,    the Court ruled that there was no discriminatory intent.94 Even if the purpose proves to be discriminatorily motivated, the law could be constitutional if it were repassed citing a different and nondiscriminatory motivation.95 In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court demonstrates just how fact-sensitive a racial classification in an Equal Protection claim can get by offering factors to weigh when proving legislative discriminatory intent.96 “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”97 The Arlington Heights factors include the impact of the official action, a clear pattern that is unexplainable on grounds other than race, the historical background of the decision, the specific sequence of events leading up to the challenged decision (i.e., departures from normal procedural or substantive sequence), and legislative or administrative history.98

On its face, the SAFE Act’s requirements are race-neutral and separate Kansans into a classification based on their ability to show voter   ID and present proof of citizenship. In other words, the Act separates applicants into people who can meet the requirements and people who cannot. This classification would certainly not win an Equal Protection argument because rational basis would apply, as people who cannot show voter ID and proof of citizenship are not a suspect class. They are not “discrete and insular” minority.99 Therefore the SAFE Act’s proof of citizenship would be deemed rationally related to the state’s interest.

For the purpose of identifying the level of scrutiny in an Equal Protection argument, another possible classification of the voters affected by the SAFE Act could be the age of the voters. The strict voter registration requirements in Kansas affect many young, first-time voters.100 A significant percentage of Kansans in voter purgatory were young and most likely liberal-minded students.101 Again, however, rational basis would apply to an age classification, and the court would most likely not hold that the statute violates the Equal Protection Clause. For example, the Court in Massachusetts Board of Retirement v. Murgia upheld a statute that discriminated on the basis of age.102 Strict scrutiny is  used  when  the  law  operates  to  “peculiar  disadvantage  of  a  suspect class” or interferes with a fundamental right.103 Age is not a suspect class for purposes of Equal Protection analysis,104 though it is more discrete and insular than a classification based on the ability to produce proper ID. The SAFE Act would  mostly  likely  be  upheld  under  an age classification.

A third classification in the proof-of-citizenship issue is political affiliation. Young people, poor people, and minorities tend to vote Democrat.105 The young are less likely to already be registered and the poor are less likely to have access to the necessary documents.106  On the other hand, the politicians behind legislation like the SAFE  Act are mostly conservative Republicans.107  The partisan distinction  in proof-of-citizenship requirements can be compared to the same distinction in other areas of voting law, namely in political gerrymandering. Mere political gerrymandering has been upheld as constitutional in several cases.108 Political gerrymandering is the re-drawing of district lines according to the citizens’ political affiliations in order to maximize their party’s voice.109 Most disturbingly, the Court does not seem to care that racial gerrymandering is almost always an effect of political gerrymandering.110 In Hunt v. Cromartie, the Court said, “[o]ur prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that  the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.”111 The reasoning here was similar to the Washington reasoning that the racial gerrymandering and racial discrimination was an incidental consequence of the legislation without discriminatory intent. At times courts have been willing to accept proof of racially discriminatory intent in gerrymandering cases, where the minority right to vote was clearly at stake.112 In Gomillion v. Lightfoot, the Alabama legislature re-drew a square-shaped district into a twenty-eight-sided shape to include  only the white part of the city.113  The Court took the disenfranchising effect of the gerrymandering as evidence of the discriminatory intent because there could  be little  doubt that the oddly shaped district was intended to exclude black voters.114 Proponents of the SAFE Act could use the reasoning in Hunt to support their argument that proof of citizenship — if discriminatory at all — only discriminates along party lines, much like political gerrymandering. However, even if political discrimination is the goal of the SAFE Act, proof of citizenship to vote uses racial discrimination as a vehicle to political discrimination. Lawmakers use proof of citizenship to suppress the vote of all Blacks and Hispanics because these groups have a harder time obtaining the proper ID.115 In political gerrymandering, the purpose is political discrimination for the gain of the party in power, and  the method is politically discriminatory because the lines are drawn by looking at registered partisanship of the area.116 In proof-of-citizenship legislation, the purpose may also be political, but the method is racially discriminatory. Even if the purpose is to create political advantage, the fact that citizenship is the obstacle in the SAFE Act shows that the Act tar- gets minorities, instead of targeting partisanship with incidental racial discrimination. Proof of citizenship was a carefully chosen requirement that isolates immigrants especially. Photo ID requirements, while arguably disenfranchising too, do not target a specific group  of  people  based on their national origin to the same extent that needing a passport or birth certificate does.

The Equal Protection classification of political party affiliation would not qualify as a suspect class deserving of strict scrutiny. Just like age and ID possession,  partisanship would be a classification   that would trigger rational basis in court interpretation of the SAFE Act. Proof-of-citizenship requirements target minorities,  the  poor,  and the young regardless of their political affiliations because  over half of the applicants on the “suspense” list are unaffiliated with a party.117 Whether registering as Republican or Democrat, new registrants have to present ID and proof of citizenship.

Republican politicians have alluded to their intent  to  keep  Demo- crats from voting. For example, Pennsylvania Representative  Mike  Turzai stated that “voter ID  [was]  going to allow  Governor Romney  to win the state of Pennsylvania” in the 2012 Presidential election.118 Another Republican Paul Weyrich made an even broader statement in 1980 at a religious group’s conference, stating, “I don’t want every- body to vote.  Our  leverage  in  the  elections  quite  candidly  goes  up  as the voting populace goes  down.”119  Statements  like  this  suggest that proof-of-citizenship and voter ID laws are meant to put more Republicans in office at the cost of disenfranchisement. A Recent empirical data proves a racially discriminatory effect of the SAFE Act by showing that voter ID laws of various kinds generally affect minorities more than  white  people.120  The  Leadership  Conference  for  Civil Rights report Warning Signs argues that the discriminatory effect  of these laws is significant.121 Warning Signs shows the small margin between 2016 Presidential candidates Hillary Clinton and Donald Trump   in the pre-election polls of five states.122 Those states have suppressive voting requirements that discriminate against minorities, which “Warning Signs” predicted would have a large effect on the outcome of the 2016 Presidential election.123

Circumstantial evidence strongly suggests that race is a huge factor in the drafting and passing of proof-of-citizenship laws like those of Arizona  and  Kansas.124   While  an  opponent  of  the  SAFE  Act and proof-of-citizenship requirements could use Gomillion v. Lightfoot to argue that the discriminatory effect of minority disenfranchisement makes obvious the discriminatory intent of the Act, circumstantial   and direct evidence of legislative discriminatory intent would make  the claim stronger.125 States  with  proof-of-citizenship  requirements or strict photo ID laws employ many tactics  in  suppressing  the  Black and Hispanic votes, proving that  legislation  like  the  SAFE Act is fueled by a  racially  discriminatory  intent.126 Proponents  of the SAFE Act may argue that the SAFE Act lacks discriminatory purpose and therefore only has incidental discriminatory effect, similar to Washington’s reading test ordinance. The discrimination that happens as a result of the SAFE Act could be an incidental effect of protecting election integrity and preventing voter fraud, the alleged purposes of the Act. However, circumstantial evidence of legislative intent to dis- criminate indicates that more than just an incidental discriminatory effect results from proof-of-citizenship requirements.

A recent news report suggesting legislative intent to discriminate revealed that the 2016 Spanish voting guidelines in Kansas had different information than the 2016 English guidelines.127 The guidelines in English had the correct registration deadline of twenty-one days before election day. The Spanish version said fifteen days before election day was the deadline to register.128 The mistake could have been easily corrected by a non-Spanish speaker because digits were used in- stead of Spanish and English words, and the numbers clearly did not match.129 The Spanish version’s later deadline could have prevented qualified people from registering because applicants would have thought they had more time to register than they actually did. The Spanish version also failed to mention passports as valid proof-of- citizenship while the English version listed passports as valid  forms of proof-of-citizenship.130 Immigrants are more likely to have a pass- port available than a birth certificate.131 Ironically, proponents of proof-of-citizenship requirements stress ease with which a legal immigrant can register using a passport.132

Another voting guide mishap occurred in May 2016, this time in Arizona. At least 400,000 voters were without their guides before a May 17 local election after confusion with IBM, the company that prints many of Arizona’s voting guides.133 Republican Secretary of State Michele Reagan blamed IBM, but the tech company revealed that Reagan’s office caused the delay because the Secretary’s office is responsible for the mailing list of voters from the registration system.134 Two counties received their voting guides without delay, however.135 Conveniently, one of those counties was Maricopa, a notoriously Republican county despite the large and liberal city of Phoenix being located within the county. Maricopa and Pima counties both receive their guides from another printing services, not IBM.136 Maricopa  and  Pima have fewer Hispanics and Native American residents than half  of the rest of Arizona’s counties.137

Arizona has employed another tactic to prevent Hispanics from  voting, showing their intent to discriminate using more than just proof-of- citizenship requirements. Polling places have been cut from one poll per 2500 voters to one poll per 21,000 voters in Maricopa County.138 Predictably, the areas with more white voters kept more of their polling places than Hispanic areas of Maricopa.139 The areas with the fewest polling sites were the poorer parts of the county, including West Phoenix, Glendale, and the Southwest Valley.140 “It  was not just   that there weren’t enough polling places. . . . Their allocation also was ‘far more favorable in predominantly Anglo communities.’ There were fewer voting locations in ‘parts of the county with higher minority populations.’”141 This shows an overall intent to suppress the minority vote in Arizona by any  means  possible,  including  strategically  placed or misplaced polls as well as proof-of-citizenship legislation.

In 2014, Alabama implemented a voter ID law where registrants must present photo ID at the polls.142 Registrants could obtain the required photo ID from any DMV in Alabama. Then in 2015, the Alabama legislature shut down thirty-one driver license offices, almost half of the offices in the state, mainly in counties with the highest percentage of Blacks.143 “Every single county in which Blacks make up more than 75% of registered voters will see their driver license office closed.”144 Alabama’s closings of DMVs in black counties right after requiring DMV IDs for voting is thinly veiled disenfranchisement. This indicates that photo ID voting requirements are a systemic disenfranchisement practice, and proof-of-citizenship requirements are even more burdensome than photo ID requirements.145 Texas acted similarly with their own strict photo ID law.146

Texas has no driver’s license offices in almost a third of the state’s counties. Meanwhile, close to 15% of Hispanic Texans living in counties without driver’s license offices don’t have ID. A little less than a quarter of driver’s license offices have ex- tended hours, which would make it tough for many working voters to find a place and time to acquire the IDs.147

The Texas State Representative who introduced the strict photo ID bill provided one example when asked for evidence of voter fraud in Texas.148 Representative Debbie Riddle said that once a Latina woman, who  spoke  only  Spanish,  was  voting  at  Riddle’s  polling  place  and needed assistance.149 Suspecting fraud of Latinos like the woman at Riddle’s polling place simply because of their first language is essentially racial profiling.150 The Texas photo ID requirement was recently challenged in court.151 The Fifth Circuit Court of Appeals held that the requirement violated the VRA, but a rehearing has been ordered.152

In July 2016, Wyandotte County, Kansas, a historically Democratic  and black county, lost 7009 registered voters, a loss which Wyandotte County Election Commissioner Bruce Newby153 says was due to “routine maintenance of voter registration rolls that involves purging the names of voters who have moved out of the county.”154 Despite the county’s population  growth, it now has  fewer registered  voters than    it did two years ago.155 The fact that more people live in Wyandotte now does not line up with Newby’s story that 7000 voters have left the county, casting suspicion on the “purging” practices of the Election Commission.

Discerning the true legislative intent is nearly impossible, but observing the conduct of the legislation’s main author in other areas of his political career could offer circumstantial, although not conclusive, evidence. Many have called Secretary Kobach a “racist,” citing statements he has made on his public radio program “The Kris Kobach Show.”156 Secretary Kobach is well-known for authoring Arizona’s  and Alabama’s immigration laws, considered the toughest anti-illegal immigration laws in the country.157  Secretary Kobach himself does not identify as a racist and resents the association of racism with anti-illegal immigration.158 Still, it is concerning that a law with discriminatory effects was drafted and  implemented  by  a  politician who is so often accused of racial discrimination and promotion of potentially racist policies.159

Circumstantial evidence strongly suggests that race is a large factor in the drafting and passing of proof-of-citizenship laws like that of Kansas. However, the United States Supreme Court has made the bur- den of proving intent so heavy that even piles of circumstantial evidence may not be sufficient to meet the standard  the  Court  has  set.160 Review of circumstantial evidence from Kansas and other states with proof-of-citizenship or photo ID requirements establishes that an Equal Protection Clause argument on the basis of race exists. Perhaps the Court should reconsider the excessively exacting standard they have created for demonstrating discriminatory intent.161 The difficulty of proving legislative intent to discriminate when drafting and passing a law162 effectively defeats the purpose of giving this highly suspect class a strict level of scrutiny in reviewing legislation.

Recent news reports have provided sufficient circumstantial evidence necessary to invalidate the SAFE Act by means of the Fourteenth Amendment.  The circumstantial  evidence  shows  both discriminatory effect and intent, and a court’s analysis of the SAFE Act would, therefore, require strict scrutiny. Analysis of an Equal Protection claim includes identifying a state interest that the law is serving.163 The SAFE Act’s state interest is preventing voter fraud.164 Election integrity is a legitimate and reasonable state interest, and proponents and critics of the SAFE Act even hold the same goal of protecting democracy. In this instance, however, the SAFE Act overprotects democracy so as to actually endanger it. The SAFE Act is not narrowly tailored to accomplish its goal.165 The targeted problem is much smaller than the solution’s coverage.166  Other states have implemented voter ID laws that take precautions against voter fraud while creating less risk of disenfranchisement of Latinos and Blacks.167 Since the SAFE Act is not narrowly tailored to protect the state’s interest in voter fraud prevention, the Act must be amended to exclude the harsh proof-of-citizenship requirements. Possible revisions could include a nonrestrictive photo ID requirement, which would prevent in-person fraud with less risk of dis- enfranchising minorities in Kansas.

IV. Conclusion

Two Congressional Acts preempt the SAFE Act. The National Voter Registration Act of 1993 can and has invalidated the Kansas voting restrictions for federal elections. The Voting Rights Act of 1964 could overturn the restrictions not just at the federal election level but also   at the state and local elections. The SAFE Act should be declared un- constitutional at the federal election level under the Twenty-fourth Amendment’s poll tax ban, and finally, at all election levels under the Equal Protection Clause of the Fourteenth Amendment.

Previously, critics of the proof-of-citizenship requirements in Kansas and Arizona have suggested that the SAFE Act violates the Fourteenth Amendment, but deemed the burden of proving legislative intent to discriminate against Latinos and Blacks in Kansas too heavy.

Recently, investigative-style news reports have dug up circumstantial evidence to support the necessary discriminatory intent behind the passing of the SAFE Act in Kansas. By looking at the discrimination resulting from similar voting restrictions in Kansas, Arizona, and other states with strict photo ID requirements, a pattern emerges of disenfranchisement resulting in unequal protection of the law and compromised democracy.

  1. Kelsey Ryan & Bryan Lowry, Young Voters, Wichitans Top Kansas’ Suspended Voter List, WICHITA EAGLE (Sept. 26, 2015, 4:35 PM),
  2. Id.; see Secure and Fair Elections Act, KAN. STAT. ANN. § 25-2309 (2016).
  3. § 25-2309(e)-(g); see Samantha Lachman, Want to Get Out of ‘Voter Purgatory’ in Kansas? Try Suing, HUFFINGTON POST (Nov. 23, 2015, 5:14 PM),
  4. National Voter Registration Act of 1993, 52 U.S.C. § 20504 (2012)
    The voter registration application . . . may require only the minimum amount of information necessary to . . .
    (i) prevent duplicate voter registrations; and
    (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process;
    (C) shall include a statement that—
    (i) states each eligibility requirement (including citizenship);
    (ii) contains an attestation that the applicant meets each such requirement; and
    (iii) requires the signature of the applicant, under penalty of perjury”)
    Id.; see also Kyle Calvin, Comment, Just Check the Box: The Tenth Circuit’s Decision Leaves Voter Qualifications in Agency’s Trust [Kobach v. U.S. Elections Assistance Commission, 772 F.3d 1183 (10th Cir. 2014)], 55 WASHBURN L.J. 269, 269 (2015). Calvin criticizes the district court’s decision in Kobach and supports a proof-of-citizenship requirement for voting registration as the best means of preventing voter fraud and preserving the integrity of Kansas’s democratic system. Id.
  5. KAN. STAT. ANN. §25-2309(b).
  6. Arizona v. Inter Tribal Council, 133 S. Ct. 2247 (2013) (holding that the NVRA struck down the Arizona evidence-of-citizenship requirement in federal elections); Kobach v. U.S. Elections Assistance Comm’n (Kobach II), 772 F.3d 1183 (10th Cir. 2014) (holding that the NVRA preempts Kansas’s SAFE Act and the Kansas law requirements violate the NVRA’s “minimum amount of information necessary”); Gonzalez v. Arizona, 677 F.3d 383, 407-10 (9th Cir. 2012) (en banc) (holding that Arizona’s proof-of-citizenship voting registration requirement violated the NVRA minimum standard).
  7. John Eligon, A.C.L.U. Challenges Kansas Voter Law Requiring Proof of Citizenship, N.Y. TIMES (Feb. 18, 2016),; Deb Hipp, ACLU Sues Kansas Over Voter Registration Rules, COURTHOUSE NEWS SERV. (Feb. 19, 2016, 10:07AM),
  8. KAN. ADMIN. REGS. § 7-23-15(c) (2016); Lachman, supra note 3. Some on the list are life-long Kansans and military veterans who are being denied their right to vote even after complying with the proof-of-citizenship requirements because their registration was never approved and thus, they were stuck on the purgatory waiting list. See Hipp, supra note 7 (providing an example of one Kansan claiming he provided the necessary documents but was not taken off the purgatory list).
  9. Fish v. Kobach, No. 16-2105, 2016 WL 4060262, at *1 (D. Kan. July 29, 2016).
  10. Id.
  11. Lachman, supra note 3.
  12. Kris W. Kobach, Why Opponents Are Destined to Lose the Debate on Photo ID and Proof-of-Citizenship Laws: Simply Put—People Want Secure and Fair Elections, 62 SYRACUSE L. REV. 1, 5 (2012) (Secretary Kobach defends his proof-of-citizenship and photo ID voting requirements).
  13. Hans von Spakovsky, Opinion, Spakovsky: Voter ID is a Sensible Precaution, STATESMAN ( July 28, 2011, 8:12 PM),
  14. Kurt Eichenwald, Don’t Blame Trump: American Democracy Was Broken Before He Muscled In, 166 NEWSWEEK 1 (May 13, 2016, 6:01 AM), (“In her 2010 book, The Myth of Voter Fraud, Lorraine Minnite, a professor of public policy at Rutgers, collected decades of voting data and concluded that in 2005, more people had been indicted for violations of migratory bird laws than for election fraud. ‘Fraud itself is a relatively rare event,’ she wrote. ‘Rather, the problem is the myth of fraud that can influence the vote count and, more important, shapes the rules that erode voting rights.’ ”).
  15. Editorial, Fighting for the Right to Vote, NEWTON KANSAN (May 26, 2016), [hereinafter Right to Vote] (“Kobach is the only secretary of state in the country who has the power to prosecute citizens for voter fraud. However, instances of voter fraud are extremely rare in Kansas, which is why Kobach has only filed six cases since July 2015. Of those cases, two were withdrawn and four resulted in misdemeanor convictions for double voting. Notice that none of these cases have anything to do with citizenship. Between 1995 and 2013, only three non-citizens were proven to have voted in a federal election in Kansas.”); see also Dion Lefler, Officials Say Only Two Cases of Voter Fraud in Sedgwick County, WICHITA EAGLE (Mar. 1, 2011, 12:00 AM), For a list of instances where illegal aliens allegedly were registered to vote in other states, see Kobach, supra note 12.
  16. Laura Wagner, Judge Blocks Kansas’ Proof-Of-Citizenship Voting Registration Requirement, NPR (May 18, 2016, 7:55 AM), 2016/05/18/478496140/judge-blocks-kansas-proof-of-citizenship-voting-registration-requirement.
  17. See Eichenwald, supra at note 14 (“Unfortunately, conservatives have a long history of contempt for broad swaths of the electorate and have spent years finagling ways to make sure that only the ‘right’ people gain easy access to the ballot box. During remarks in 1980 to a group called the Religious Roundtable, Paul Weyrich, a founder of the modern political conservative movement, made that quite clear. ‘I don’t want everybody to vote,’ he said. ‘Our leverage in the elections quite candidly goes up as the voting populace goes down.’ ”).
  19. Id.; see Chelsea A. Priest, Comment, Dual Registration Voting Systems: Safer and Fairer?, 67 STAN. L. REV. ONLINE 101, 106 (2015) (“Studies have shown that ID ownership is lower among Hispanics and African Americans than among whites. The Government Accountability Office found that voter ID laws depressed turnout, particularly among African American registrants.”); see also Eichenwald, supra note 14 (“About 11 percent of eligible voters do not have current driver’s licenses or other IDs acceptable under the new laws. A large portion of those are poor. African-Americans were one-third as likely to have a photo ID as whites.”); Sari Horwitz, Getting a Photo ID so You Can Vote is Easy. Unless You’re Poor, Black, Latino or Elderly, WASH. POST (May 23, 2016) But see generally Rene R. Rocha & Tetsuya Matsubayashi, The Politics of Race and Voter ID Laws in the States: The Return of Jim Crow? 67 POL. RES. Q. 666 (2014) (finding little correlation between minority voter turnout and photo ID voting requirements in 2014). However, the latest data used in the study was from 2010, before Shelby County v. Holder overruled the preclearance requirement of the VRA. 133 S. Ct. 2612 (2013).
  20. Eichenwald, supra at note 14.
  21. See Nick Viviani, Timeline of Kansas’s Battle Over Proof-of-Citizenship Voting Law, WIBW ( July 19, 2016, 8:45 PM),; see also Stephen Douglas Bonney, Democracy’s Rainbow: The Long Ascent and Rapid Descent of Rights in Kansas, 25 KAN. J. L. & PUB. POL’Y 347 (2016). For a summary of Kansas voting history, see Editorial, Encouraging Voting, THE KANSAN (Aug. 14, 2012, 5:07 PM),
  22. See Proposition 200, ARIZ. REV. STAT. ANN. § 16-166(F) (2014); S.B. 1029, 52d Leg., 2d Reg. Sess. (Ariz. 2016) (proposed legislation after § 16-166(F) was held unconstitutional); see also Ari Berman, Separate and Unequal Voting in Arizona and Kansas, NATION (Oct. 15, 2013),
  23. See Dion Lefler, Judge Questions Feds’ Role in Kansas, Arizona Voting Laws, WICHITA EAGLE (Feb. 11, 2014, 1:07 PM),
  24. Arizona v. Inter Tribal Council, 133 S. Ct. 2247 (2013).
  25. Priest, supra at note 19, 102-103.
  26. Id.; see KAN. STAT. ANN. § 25-2309 (2016).
  27. Fish v. Kobach, No. 16-2105, 2016 WL 2866195 (D. Kan. May 17, 2016); Right to Vote, supra note 15.
  28. Yael T. Abouhalkah, Kris Kobach Knuckles under to Court in Major Victory for Thousands of Kansas Voters, KAN. CITY STAR ( June 15, 2016, 1:38 AM), (stating the Tenth Circuit upheld the injunction, but Kansas plans to appeal the injunction to the Supreme Court.)
  29. US. CONST. amends. XIV, XIX, XXIV, XXVI.
  30. Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (“[V]oting is of the most fundamental significance under our constitutional structure.”); Wesberry v. Sanders, 376 U.S. 1, 17 (1963) (“Other rights, even the most basic, are illusory if the right to vote is undermined.”); Wexler v. Anderson, 452 F.3d 1226, 1231 (11th Cir. 2006) (“The right to vote is fundamental, forming the bedrock of our democracy.”).
  31. See Eichenwald, supra at note 14.
  32. ARI BERMAN, GIVE US THE BALLOT 250 (2015).
  33. The disenfranchisement of tens of thousands does not justify the prevention of three cases of non-citizen voting. See John Whitesides, Thousands of Voters in Limbo after Kansas Demands Proof They’re American, REUTERS ( June 2, 2016, 11:16 AM), dUSKCN0YN4AQ (“[Judge Robinson] concluded that ‘the Court cannot find that the State’s interest in preventing noncitizens from voting in Kansas outweighs the risk of disenfranchising thousands of qualified voters.’ ”).
  34. See, e.g., Priest, supra at note 19, 103-04. Priest’s critique of dual voting registration systems lists poll tax, the Equal Protection clause, and the Voting Rights Act as possible legal arguments against the Kansas and Arizona registration systems but predicts that these cannot be argued successfully. See generally id. The practical arguments of high costs, low voter turnout, and disenfranchisement are much more convincing, according to Priest. Id. at 106-10; see also Bonney, supra note 21, at 360-64.
  35. National Voter Registration Act of 1993, 52 U.S.C. § 20501(b)(1) (2012).

  36. Arizona v. Inter Tribal Council, 133 S. Ct. 2247, 2249 (2013); Kobach II, 772 F.3d 1183, 1199 (10th Cir. 2014); Gonzalez v. Arizona, 677 F.3d 383, 407-10 (9th Cir. 2012).
  37. 52 U.S.C. § 20505(a)(1) (2012).
  38. § 20501(b)(1).
  39. § 20504(c)(2)(C)(iii).
  40. See id.
  41. Kobach II, 772 F.3d. at 1183.
  42. Id. at 1188-89; see also Editorial, Don’t Let Arizona and Kansas Get Away with Potentially Discriminatory Voter Registration Rules, L.A. TIMES (Aug. 27, 2014, 4:38 PM), [hereinafter L.A. TIMES] (“If you don’t recognize the name ‘Election Assistance Commission,’ you aren’t alone. It’s an obscure four-member body that has been charged by Congress with enforcing provisions of the National Voter Registration Act of 1993—also known as the Motor Voter Law—that allows citizens to register to vote when they apply for or renew a driver’s license, or by mailing in a simple form. Under the law, the commission, ‘in consultation with the chief election officers of the states, shall develop a mail voter registration application form for elections for federal office.’ In practice, that means that the commission can customize the form to include ‘state-specific’ information.”)
  43. Kobach v. U.S. Election Assistance Comm’n (Kobach I), 76 F. Supp. 3d 1252 (D. Kan. Mar. 19, 2014), rev’d 772 F.3d 1183.
  44. Kobach II, 772 F.3d at 1196 (“The EAC has a duty to include a state’s requested text on the federal form only if a reviewing court holds, after conducting APA review, that excluding the requested text would preclude the state from enforcing its voter qualifications.”).
  45. Id. at 1195-96 (quoting Arizona v. Inter Tribal Council, 133 S. Ct. 2247, 2258-59 (2013)).
  46. Priest, supra at note 19, at 103.
  47. U.S. CONST. amend. XXIV, §1.
  48. 383 U.S. 663, 666 (1966) (“We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”).
  49. Gonzalez v. Arizona, 677 F.3d 383, 407-10 (9th Cir. 2012) (“Gonzalez and [the Inter Tribal Council] do not argue that requiring voters to show identification at the polls is itself a poll tax. Rather, they argue that, because some voters do not possess the identification required under Proposition 200, those voters will be required to spend money to obtain the requisite documentation, and that this payment is indirectly equivalent to a tax on the right to vote.”).
  50. Priest, supra at note 19, at 103-04; see also Horwitz, supra note 19 (providing an example of one man’s expensive legal fight where he had to obtain several lawyers to locate a fifty-year-old certificate of name change because his current name did not match his birth certificate).
  51. See Passport Fees, U.S. DEP’T ST.,, (last visited Sept. 16, 2016) (providing information on the various types of passports with a table of the costs of passports).
  52. See Harman v. Forssenius, 380 U.S. 528, 538-43 (1965).

  53. Id. at 538.
  54. Id. at 530-32.
  55. Id. at 542.
  56. See, e.g., KAN. STAT. ANN. § 79-32,109 (2016) (“ ‘Resident individual’ means a natural person who is domiciled in this state. A natural person who spends in the aggregate more than six months of the taxable year within this state shall be presumed to be a resident for purposes of this act in absence of proof to the contrary. A nonresident individual means an individual other than a resident individual.”).
  57. Priest, supra at note 19, at 103-04.
  58. 677 F.3d 383, 407-10 (9th Cir. 2012).
  59. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 n.17 (2008) (plurality opinion).
  60. Id. But see RICHARD A. POSNER, REFLECTIONS ON JUDGING 84-85 (2013) (“[Voter ID laws are] now widely regarded as a means of voter suppression rather than of fraud prevention.”).

  61. See Crawford, 553 U.S. at 197-99.
  62. See, e.g., South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C. 2012) (preclearing new South Carolina law that allows voting without a photo ID as nonviolative of the VRA); see also Wendy Underhill, Voter Identification Requirements, NAT’L CONF. OF ST. LEGIS. (Aug. 31, 2016),
  63. See, e.g., Richard E. Levy, The Nonpartisanship Principle, 25 KAN. J. L. & PUB. POL’Y 377, 398 (2016); Priest, supra at note 19, at 105-06.
  64. Voting Rights Act, 42 U.S.C. § 1973 (2012).
  65. 133 S. Ct. 2612, 2630-31 (2013).
  66. See, e.g., BERMAN, supra note 32, at 286-314; DANA PAIKOWSKY & SCOTT SIMPSON, LEADERSHIP CONF. FOR C.R., WARNING SIGNS: THE POTENTIAL IMPACT OF SHELBY COUNTY V. HOLDER ON THE 2016 GENERAL ELECTION 1-3 (2016), (discussing the potential adverse effects of Shelby County in North Carolina, Florida, Virginia, Arizona, and Georgia); Lauren Carasik, Alabama’s DMV Closures Reinforce Need to Restore the Voting Rights Act, ALJAZEERA AM. (Oct. 15, 2015, 2:00 AM),; Sari Horwitz, Kris Kobach Makes His Case for Tough Voting Restrictions, TYLER MORNING TELEGRAPH (April 7, 2016, 8:40 AM),
  67. Gonzalez v. Arizona, 677 F.3d 383, 388 (9th Cir. 2012).
  68. Id. at 404-06.
  69. 42 U.S.C. § 1973(b) (2012) (“A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”).
  70. S. Rep. No. 97-417, at 28-29 (1982) (concerning the proposed amendments to the VRA).
  71. Gonzalez, 677 F.3d at 405. This is in stark contrast with an Equal Protection claim, which focuses on proving discriminatory intent rather than impact. Levy, supra note 63, at 383 n.29 (“Under § 2 of the Voting Rights Act, however, proof of intent is not required because the act prohibits any rule, requirement, or practice that ‘results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . .’ ”); see also 52 U.S.C. § 10301(b) (specifying that a violation of subsection (a) occurs if “based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice”).
  72. Gonzalez, 677 F.3d at 406 (“In considering the Senate Factors listed above, the district court found that Latinos had suffered a history of discrimination in Arizona that hindered their ability to participate in the political process fully, that there were socioeconomic disparities between Latinos and whites in Arizona, and that Arizona continues to have some degree of racially polarized voting.”).
  73. Id.
  74. Kobach II, 772 F.3d 1183 (10th Cir. 2014).
  75. Arizona v. Inter Tribal Council, 133 S. Ct. 2247 (2013).
  76. McLaughlin v. Florida, 379 U.S. 184, 192 (1964) (“[T]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.”); see also Washington v. Davis, 426 U.S. 229, 239 (1976) (applying the same analysis in a Fifth Amendment Equal Protection case that applies to the Fourteenth Amendment’s Equal Protection Clause).
  77. See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding anti-Chinese city ordinances unconstitutional).
  78. Id.
  79. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
  80. Id.
  81. McLaughlin, 379 U.S. at 191-93.
  82. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (finding the denial of rezoning was not unconstitutional under the Equal Protection Clause).
  83. See Washington v. Davis, 426 U.S. 229, 238-40 (1976); McLaughlin, 379 U.S. at 192-94.
  84. Yick Wo, 118 U.S. at 374.
  85. See id. at 373.
  86. Id.
  87. Davis, 426 U.S. at 241 (“This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law’s disproportionate impact is irrelevant in cases involving Constitution- ased claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race.”); Yick Wo, 118 U.S. at 373-74 (“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”).
  88. Davis, 426 U.S. at 242.
  89. Id. at 246-47.
  90. Id.
  91. Id. at 245.
  92. However, some suggest that legislative intent should not matter at all in cases involving the right to vote. See Calvin, supra note 4, at 292. These commentators argue that discriminatory effect alone matters in the constitutionality of the voting law. Id. “[T]he search for intent is not only futile in this context but unnecessary . . . Section 2 of the Fourteenth Amendment validates any statutory scheme that prevents abridgment of the right to vote, regardless of the presence or absence of discriminatory intent.” Franita Tolson, What is Abridgment?: A Critique of Two Section Twos, 67 ALA. L. REV. 433, 433 (2015). Because the right to vote is a fundamental right, the Equal Protection claim should stand and strict scrutiny should be applied. Levy, supra note 63, at 383. While I agree that the right to vote is a fundamental right because of the four Amendments that guarantee it, I think this is more of a substantive Due Process argument under the Fourteenth Amendment. See Carey v. Population Servs., Int’l, 431 U.S. 678, 684-85 (1977) (discussing the interest in making decisions “without unjustified governmental interference” protected by the Due Process Clause of the Fourteenth Amendment). In a Due Process analysis, a law involving a fundamental right is automatically under strict scrutiny, so no classification of the burdened group is necessary. See Gallagher v. City of Clayton, 699 F.3d 1013, 1017-1019 (8th Cir. 2012).
  93. Levy, supra note 63, at 383-83. Professor Levy mentions an Equal Protection argument against proof-of-citizenship is plausible but difficult to prove because of the necessary intent. Id. Similarly, Priest does not think an Equal Protection argument would be very persuasive. Priest, supra at note 19, at 105.
  94. Palmer v. Thompson, 403 U.S. 217, 219 (1940).
  95. Id.
  96. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977).
  97. Id. at 266.
  98. Id. at 267-68.
  99. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
  100. The burdens of voting restrictions are placed on several different groups of people, including the young, the old, the poor, and people who have changed their names. See Horwitz, supra note 19; Ryan & Lowry, supra note 1; Proof of Citizenship, PROJECT VOTE, (last visited Sept. 16, 2016) [hereinafter PROJECT VOTE].
  101. Ryan & Lowry, supra note 1.
  102. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
  103. Id. For more on a substantive due process argument on the SAFE Act burdening the fundamental right to vote, see supra text accompanying note 92.
  104. Murgia, 427 U.S. at 313.
  105. Rocha & Matsubayashi, supra note 19, at 666; Eichenwald, supra at note 14.
  106. See Ryan & Lowry, supra note 1.
  107. Rocha & Matsubayashi, supra note 19, at 666.
  108. See, e.g., Vieth v. Jubelirer, 541 U.S. 267 (2004) (holding that political gerrymandering was not justiciable); Hunt v. Cromartie, 526 U.S. 541 (1999) (holding political gerrymandering constitutional even if racial gerrymandering is an incidental consequence); Davis v. Bandemer, 478 U.S. 109 (1986) (holding that political gerrymandering is allowed).
  109. Levy, supra note 63, at 388-89.
  110. Hunt, 526 U.S. at 551.
  111. Id.; see Levy, supra note 63, at 383-84.
  112. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996) (finding racial gerrymandering favoring minorities failed strict scrutiny); Shaw v. Reno, 509 U.S. 630 (1993) (holding that racial gerrymandering disfavoring minorities triggers strict scrutiny in an Equal Protection analysis).
  113. Gomillion v. Lightfoot, 364 U.S. 339, 340-41 (1960).
  114. Id.
  115. Horwitz, supra note 19.
  116. Hunt v. Cromartie, 526 U.S. 541, 549 (1999).
  117. Eligon, supra note 7.
  118. Robert Barnes, Pennsylvania Voter-ID Law Shouldn’t be Enforced This Time, Judge Rules, WASH. POST (Oct. 2, 2012), Once the law was overturned, Representative Turzai’s prediction turned out to be incorrect: Obama won Pennsylvania. Election 2012: President Map, N.Y. TIMES, (last visited Sept. 16, 2016).
  119. Eichenwald, supra at note 14.
  120. GAO, supra note 18; PROJECT VOTE, supra note 99.
  121. PAIKOWSKY & SIMPSON, supra note 66, at 1.
  122. Id.
  123. Proposition 200, ARIZ. REV. STAT. ANN. § 16-166(F) (2016) (requiring proof-of-citizenship); FLA. STAT. § 101.043 (2016) (requiring photo ID); GA. CODE ANN. § 21-2-216(g) (2016) (requiring proof-of-citizenship); N.C. GEN. STAT. § 163-166.13 (2016) (requesting photo ID); VA. CODE ANN. § 24.2-643 (2016) (requiring photo ID); see also PAIKOWSKY & SIMPSON, supra note 66, at 1; Underhill, supra note 62.
  124. Berman, supra note 22; Elvira Diaz, Diaz: The Well-Orchestrated Plan to Keep Arizona Latinos from Voting, ARIZ. CENT. (Mar. 29, 2016),; E.J. Dionne, Jr., Arizona’s Voting Outrage is a Warning to the Nation, Wash. Post (Mar. 27, 2016), html?utm_term=.55e8bed806c4; L.A. TIMES, supra note 42.
  125. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977).
  126. Manny Fernandez & Erik Eckholm, Federal Court Rules Texas ID Law Violates Voting Rights Act, N.Y. TIMES ( July 20, 2016), 07/21/us/federal-court-rules-texas-id-law-violates-voting-rights-act.html?_r=0#; Horwitz, supra note 19; PROJECT VOTE, supra note 99.
  127. See, e.g., Dion Lefler, Errors in Kansas’s Spanish Voting Guide Include Wrong Registration Deadline, KAN. CITY STAR (April 9, 2016),; Chris Reeves, Kansas New Play on Voter Disenfranchisement: Voter Guidelines are Different in Spanish, DAILY KOS (April 4, 2016), 1512132/-Kansas-New-Play-On-Voter-Disenfranchisement-Voter-Guidelines-Are-Different-In-Spanish.
  128. Lefler, supra note 127.
  129. Id.
  130. Id.
  131. Id.
  132. See Kobach, supra note 12, at 4; see also von Spakovsky, supra note 13.
  133. Danny Miller, IBM says Michele Reagan Wrong to Blame Company for Arizona Voter Guide Delay, ARIZ. CENT. (May 24, 2016, 5:44 PM),
  134. Id.
  135. Id.
  136. Id.
  137. Demographics: Population Basics, ARIZ. INDICATORS, (last visited Sept. 16, 2016).
  138. Dionne, Jr., supra note 123.
  139. Id.
  140. Diaz, supra note 123.
  141. Dionne, Jr., supra note 123.
  142. Carasik, supra note 66.
  143. Ari Berman, Alabama, Birthplace of the Voting Rights Act, is Once Again Gutting Voting Rights, NATION (Oct. 1, 2015),
  144. Id.
  145. Priest, supra note 19, at 101 (“For several years now, many states have been particularly concerned with preventing voter fraud. In most states such efforts have taken the form of voter ID laws, requiring voters to show an acceptable (usually meaning government-issued) photo ID at the polls. Some states, however, have gone even further.”).
  146. Andrew Cohen, How Voter ID Laws are Being Used to Disenfranchise Minorities and the Poor, ATLANTIC (Mar. 16, 2012),
  147. Id.
  148. BERMAN, supra note 32, at 255.
  149. Id.
  150. See generally HENRY FLORES, LATINOS AND THE VOTING RIGHTS ACT: THE SEARCH FOR RACIAL PURPOSE (2015) (discussing racism against Latinos, voting requirements, and proving discriminatory purpose or intent in the context of VRA).
  151. Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015), reh’g granted 815 F.3d 958 (5th Cir. 2016).
  152. Veasey v. Abbott, 815 F.3d 958 (5th Cir. 2016).
  153. Election Commissioner Bruce Newby holds no relation to Brian Newby, the former Johnson County Election Commissioner and current U.S. Election Assistance Committee Executive Director. Travis Perry, Suspended Kansas Voters may be Their Own Worst Enemy, KAN. WATCHDOG (Oct. 4, 2013),
  154. Wyandotte County Losing Registered Voters, TOPEKA CAP. J. ( July 11, 2016),
  155. Id.
  156. Justin Wingerter, Kobach: ’It’s Not a Huge Jump’ to say Obama Will Halt Prosecutions of All Black Criminals, TOPEKA CAP. J. (Mar. 5, 2015, 10:50 AM),; Justin Wingerter, Senate Minority Leader Anthony Hensley Calls on Kris Kobach to Resign over Radio Remarks, TOPEKA CAP. J. (Mar. 8, 2015, 12:22 AM),
  157. George Talbot, Kris Kobach, the Kansas Lawyer Behind Alabama’s Immigration Law, MOBILE PRESS REG. (Oct. 16, 2011),; see also Edward M. Eveld, Kris Kobach Rejects Criticism for Speaking at a ‘White Nationalist’ Conference, KAN. CITY STAR (Nov. 3, 2015, 4:22 PM); Kris Kobach, Why Arizona Drew a Line, N.Y. TIMES (Apr. 29, 2010)
  158. Eveld, supra note 155 (“ ‘According to the [Southern Poverty Law Center], if you’re against illegal immigration, you’re a racist,’ said Kobach.”).
  159. Mark Potok, FAIR: Crossing the Rubicon of Hate, S. POVERTY L. CTR. (Dec. 11, 2007),; see also Anh Phan, The Top 5 Things You Need to Know About Kris Kobach, AM. PROGRESS ( June 26, 2012),
  160. When ruling on Obamacare, the United States Supreme Court used several arguments together to support a conclusion that seemed to be in fact rooted in public policy. See Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
  161. See generally Julia Kobick, Note, Discriminatory Intent Reconsidered: Folk Concepts of Intentionality and Equal Protection Jurisprudence, 45 HARV. C.R.-C.L. L. REV. 517 (2010) (advocating that, in determining discriminatory legislative intent in Equal Protection claims, courts should look at the foreseeability of discrimination at the time of legislative drafting and at “intuitive indicators of intentionality”).
  162. See Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279 (1997) (discussing the confusion, frustration, and difficulty in ascertaining intent based upon laws); Kobick, supra note 161.
  163. McLaughlin v. Florida, 379 U.S. 184, 196 (1964).
  164. KAN. STAT. ANN. § 25-2309(I) (2016).
  165. In 2006, the Missouri Supreme Court held that photo ID voting requirements violated Missouri’s Equal Protection clause and guaranteed right to vote in Weinschenk v. State. 203 S.W.3d 201 (Mo. 2006). Strict scrutiny was applied, and although the state’s interest in preserving the integrity of the election process was compelling, photo IDs were not a necessary means for accomplishing the state’s goal. Id. at 210-20.
  166. See Lefler, supra note 15.
  167. Underhill, supra note 62.