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.
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.