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.