Separate and Unequal Voting in Arizona and Kansas

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This post first appeared in The Nation.

Kansas Secretary of State Kris Kobach is the architect of proof-of-citizenship laws and the new two-tiered voting scheme in his state.

In its 2013 decision in Arizona v. The Inter Tribal Council of Arizona, the Supreme Court ruled 7-2 that Arizona’s proof of citizenship law for voter registration violated the 1993 National Voter Registration Act (NVRA).

In 2004, Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof of citizenship requirement, which it said violated the NVRA.

Under the 1993 act, which drastically expanded voter access by allowing registration at public facilities like the Department of Motor Vehicles (DMV), those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens. Twenty-eight million people used that federal form to register to vote in 2008. Arizona’s law, the court concluded, violated the NVRA by requiring additional documentation, such as a driver’s license, birth certificate, passport or tribal forms.

According to a 2006 study by the Brennan Center for Justice, at least seven percent of eligible voters “do not have ready access to the documents needed to prove citizenship.” The Supreme Court affirmed the lower court ruling, finding that states like Arizona could not reject applicants who registered using the NVRA form.

(Related: Judge Who Framed Voter Laws as Constitutional Says He got it Wrong)

Now Arizona and Kansas — which passed a similar proof-of-citizenship law in 2011 — are arguing that the Supreme Court’s decision applies only to federal elections and that those who register using the federal form cannot vote in state and local elections. The two states have sued the Election Assistance Commission and are setting up a two-tiered system of voter registration, which could disenfranchise thousands of voters and infringe on state and federal law.

The tactics of Arizona and Kansas recall the days of segregation and the Supreme Court’s 1896 “separate but equal” ruling in Plessy v. Ferguson. “These dual registration systems have a really ugly racial history,” says Dale Ho, director of the ACLU’s Voting Rights Project. “They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters.”

In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections. It was hard enough to register once in states like Mississippi, where only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965. And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws.

The Voting Rights Act ended this dichotomy between federal and state elections by prohibiting racial discrimination in voting in all elections. Section 5 of the Act, which the Supreme Court eviscerated earlier this year in Shelby County v. Holder, prevented states with the worst history of voting discrimination — like Mississippi — from instituting new disenfranchisement schemes. It was Section 5 that blocked Mississippi from implementing a two-tiered system of voter registration following the passage of the NVRA in 1993, which the state claimed applied only to federal elections. (A similar plan was stopped in Illinois under state court.) Arizona — another state previously subject to Section 5 based on a long history of discrimination against Hispanic voters and other language minority groups — is making virtually the same rejected argument as Mississippi in the 1990s, but, thanks to the Roberts-led court, no longer has to seek federal approval to make the voting change. The revival of the dual registration scheme is yet another reason why Congress should revive Section 5.

(Related: Supreme Court Guts Voting Rights Act)

The proposed two-tiered system of voting and the harmfulness of proof-of-citizenship laws warrant legal scrutiny. Over 30,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004. In Kansas, 17,000 voters have been blocked from registering this year, a third of all registration applicants, because the DMV doesn’t transfer citizenship documents to election officials. The ACLU has vowed to sue Kansas if the state continues its noncompliance with state and federal law.

Proof-of-citizenship laws and the new two-tiered voting scheme are the brainchild of Kansas Secretary of State Kris Kobach, who has done more than just about anyone to stir up fears about the manufactured threat of voter fraud. As the author of Arizona’s “papers please” immigration law and Mitt Romney’s nonsensical “self deportation” immigration plan, he’s fused anti-immigrant hysteria with voter-fraud paranoia. Kobach helped the American Legislative Exchange Council draft model legislation for proof of citizenship laws based on Arizona’s bill, which were adopted in three states — Alabama, Kansas and Tennessee –following the 2010 election.

To justify his state’s new voting restrictions (Kansas also has a strict voter ID law), Kobach told The Huffington Post, “We identified 15 aliens registered to vote,” but he seems unconcerned that 17,000 eligible Kansans have been preventing from registering. Moreover, there’s no evidence these fifteen alleged non-citizens actually voted — just as there’s no evidence that Brad Friedman noted, Kansas City Star columnist Yael Abouhalkah wrote last year that Kobach “has a way of lying” about the threat of voter fraud.

Kobach claimed in 2011 that 67 non-citizens had illegally registered, out of 1.7 million on the state’s voter rolls, but he “was unable to identify a single instance of a non-citizen illegally casting a vote, or any successful prosecution for voter fraud in the state,” according to the Brennan Center. As I’ve asked before, why would a non-citizen, who presumably is in the United States to work, risk deportation and imprisonment in order to cast a ballot? Kobach once suggested in a radio interview that perhaps their coyote was paying them to vote, which defies all logic.

There’s also no evidence that using the NVRA’s federal form to register leads to higher incidents of voter fraud. “Nobody has ever been prosecuted for using the federal form to register to vote as a non-citizen,” Nina Perales, vice president of litigation at the Mexican-American Legal Defense Fund, told me earlier this year.

In reality, the two-tiered system of registration being set up in Arizona and Kansas has less to do with stopping voter registration fraud, which as shown is a very rare problem in both states and more to do with “nullifying” federal laws that Republicans don’t like, such as Obamacare. There’s symmetry between shutting down the government and creating separate and unequal systems of voter registration. It’s a strategy that dates back to Jim Crow, when fierce segregationists like John Calhoun of South Carolina tried to prevent the federal government from taxing the Confederacy and Southern Democrats instituted a policy of “massive resistance” to the Supreme Court’s Brown v. Board of Education ruling desegregating public schools.

Sam Tanenhaus wrote in “Why Republicans are the Party of White People“:

When the intellectual authors of the modern right created its doctrines in the 1950s, they drew on nineteenth-century political thought, borrowing explicitly from the great apologists for slavery, above all, the intellectually fierce South Carolinian John C. Calhoun. This is not to say conservatives today share Calhoun’s ideas about race. It is to say instead that the Calhoun revival, based on his complex theories of constitutional democracy, became the justification for conservative politicians to resist, ignore, or even overturn the will of the electoral majority.

The Confederates and Dixiecrats of yesteryear are the Republicans of today.

Ari Berman is a contributing writer for The Nation magazine and an Investigative Journalism Fellow at The Nation Institute. His first book, Herding Donkeys: The Fight to Rebuild the Democratic Party and Reshape American Politics, was published in October 2010 by Farrar, Straus, and Giroux. He is now working on a history of voting rights since 1965. Tweet him @AriBerman.
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  • David Lucier

    What a bizzare and meaningless thing to say. Rsread the story and try to comprehend what you read.

  • Anonymous

    If people like Kobach spent less time going after wind mills and more time do something constructive, this would be a better country.

  • AJ

    Windmills? This is yet another GOP example of a nuclear reaction to a nearly nonexistent problem, much like the proposed Florida drug testing of welfare recipients with a sinister goal at heart. Both were proposed with inflammatory rhetoric based on meritless grounds.

  • Kathy Collins Hurt

    He brings havoc and hate where ever he goes! Backed by Big money!….google the article Southern Poverty Law Center did on him.

  • Fiftythreepercenter

    So, let me get this straight… As an employer, I’m required to run everybody I hire through E-verify with their personal information (SSN, DL, etc) to verify they’re legally allowed to WORK, but you can’t do that to verify someone is legally eligible to VOTE??? That’s some whacked out liberal “logic” right there, folks. Just own up to the fact you want to keep illegals voting, libs, because they’re more than likely going to vote for liberals and that’s all you really care about. Everybody with a brain can see right through all the other silly antics.

  • musicandart

    It’s the result they care about – widespread suppression of folks who might vote for the Democratic Party.

  • Doug Russell

    That’s not the point is it? Why make it harder to vote when their is no fraud to speak of? Of course we know the answer.

  • Anonymous

    You think he regards minimizing the pool of likely Democratic voters as useless? I would suggest that he believes keeping women, students, and members of ethnic minorities away from the polling booths as a majority priority for the Party of God.

  • Anonymous

    <>

    How many examples of fraudulent voting by non-citizens can you find, in any of the states? Not duplicate registration by people with two homes but actual voting fraud by people not entitled to vote anywhere in the US.

    It isn’t good enough to argue that the failure to catch any proves that there are lots of people getting away with this fraud.

  • Anonymous
  • Anonymous

    The story is indeed misleading in this detail — “fierce segregationists like John Calhoun of South Carolina tried to prevent the federal government from taxing the Confederacy…..”

    It would be less misleading to say “fierce segregationists such as the disciples of Calhoun.” His significance today lies in the doctrine of nullification and his rejection of majoritarianism.

  • Anonymous

    Undoubtedly you are correct. It is a major quest for him.

  • Anonymous

    Putting aside the fact that “voter fraud” as these laws are intended to combat represents a handful of votes that would never swing an election, there are many situations where people might not have valid ID – senior citizens who no longer work or drive, college students who don’t have a drivers license at the school where they are living on election day, women who have recently married and changed their name, etc.

    These laws potentially take away the constitutional right to vote for thousands of people who just happen to generally vote democratic, to stop a problem that doesn’t even exist.

    Following your logic I assume you support universal background checks for gun purchases. Why shouldn’t they show ID too? Right?

    And by the way, if your Fiftythreepercenter name is in reference to the supposed 47% of people that don’t pay taxes, you should do your homework on that one too. That’s another Fox News fact that is about as real as voter fraud.

  • Kwisatz Haderach

    I would say a better idea would be for each voter to have write in his/her SSN or taxpayer # on their secure/confidential ballot. Ballots could then be matched to Social Security files prepared during the voter registration process. This would ‘weed-out’ dead people, felons, et al; as well as resolve any absentee ballot issues.

  • Anonymous

    Consider what sorts of people do not possess the requisite documents.

    Does everyone known to you possess a passport, a birth certificate or a driver’s license? All the people at the nearest liquor store, or 7/11, or McDonald’s? The disabled vet at the street corner? The elderly nun? The 18-year-old college kid?

    So, they take time off work, despite working two jobs to pay the bills. Maybe they have to pay babysitters. Maybe they have to take taxis to the office where they will stand in line until they can pay the fee. Maybe they will have to send away for proof.

    Or maybe they can’t do all that. Maybe they can’t afford what is, effectively, a poll tax.

  • kramartini

    The dual system is the only way for Arizona to comply with the law.

    The NVRA was passed by Congress in 1993, and is a law whose validity has never been challenged.

    Proposition 200 was passed by the people of Arizona in 2004, and was upheld as valid by the United States Court of Appeals for the Ninth Circuit in Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012).

    However, the Ninth Circuit also held that the NVRA pre-empts Prop. 200 within the scope of the NVRA, a decision that was upheld by the Supreme Court. But the Ninth Circuit noted that the NVRA only applies to Federal elections, a holding that was never challenged in the Supreme Court.

    Thus, Arizona is merely complying with Federal court rulings. Why should it be criticized for that?

  • Anonymous

    In the past, people simply swore an oath, with perjury as the disincentive, Now, they have to obtain additional paperwork, with greater or lesser ease.

    Unless one is a disciple of Paul Weyrich, getting more people to register and then to vote should be the aim in a mature democracy.

    You do know people without such documents. You just don’t see them, working one of their two or more jobs, in the drugstore or the fast food outlet. They clean offices, invisibly at night, or they work packing bags at the supermarket.

    People who don’t have the time or money to travel abroad don’t have passports.

    25% of the Americans who work full time don’t get any paid holidays, not even Christmas and Thanksgiving. The average number of paid days of holiday that professionals and executives get, as opposed to the lesser number that they actually take, would be illegal everywhere in Europe and far below the legal minimum in some countries. Although the percentage of Americans who don’t have passports is often exaggerated, it is very high by most standards. Over 60%. I know people who have never seen the sea.

    People who don’t drive, because they are poor, elderly, disabled, or just live in large cities with good transport systems don’t need driving licenses. Nuns don’t. I myself have never driven a car.

    In 2005, an analysis in Wisconsin showed that 59% of Hispanic females, 55% of African American males, 49% of African American females, and 46% of Hispanic males, compared to 17% of white males and 17% of white females, were without a valid driver’s license. For young adults ages 18-24, 78% of African American males and 66% of
    African American females in Wisconsin were without a valid driver’s
    license.
    As for students, and the entire population in areas occupied by many students, the percentages were even higher.

    In parts of Texas, a 250-mile round trip will be required to obtain the substitute ID. That is one reason why only 50 people in Texas have taken up the state’s offer of free ID.

    People who were born long ago in rural areas, people who are naturalized citizens originally from war-torn parts of the world, people who have moved a lot, people whose house burned down or was flooded, people who just never needed a birth certificate, these may well not have one. Consider the case of Obama and the endless challenges to his birth details.

    And remember, only the original documents are allowed, not photocopies or prints sent by distant offices.

    And in Texas, women will have to prove that they have changed their name, on marrying, or getting divorced, or being divorced. This week, a judge in Texas was not allowed to vote, because she has used her maiden name on her driving license for 52 years, and that is not a precise match for the name on her voter registration. There has only been one case of fraudulent voting for over a decade in Texas. The number of voters in some precincts has fallen below twenty this week.

    1,400,000 voters in Texas do not have the relevant ID. The state legislatures in Texas, North Carolina and other states have been able to put into effect legislation previously banned because the burden fell unevenly on different groups.

  • Jstme2u

    So if they know they are not liked or trusted by the illegals what does that matter? You say the republicans redistrict to keep the illegals from voting them out of office? The illegals can’t vote them out of office.

  • Jstme2u

    David you are born you have a birth certificate. If you don’t drive you can go get an ID card. You have to have a SS number to work even if it is at the nearest liquor store, 7/11 or McDonald’s. The disabled vet at the street corner is probably not going to be able to get to their polling place and if they have someone who takes them to register then that person can probably help them get an ID. The elderly nun? Same thing. I would bet you there are plenty of people who go to her church that would take her to get an ID or help her get her birth certificate and I bet the church would help her pay or again, someone from the church. The 18 year old college kid has parents and if not I can bet you one of the professors would help them get there or I bet a a student group would be formed to get students out to vote. They don’t have to take time off to vote, there is absentee voting available for all. There are plenty of us who have to send away for proof of some form or another. As far as it being a poll tax? These fees to get your ID, Birth Certificate or whatever else you need to vote is not a tax it is a fee and is no more of a tax than the extra “fee” I pay for fire protection because of where I live.

  • Jstme2u

    In the past people swore an oath, with perjury as the disincentive. In the past people came to this country the right way. My great grandparents came here legally and had RESPECT for this country and what it had to offer. They didn’t as for special treatment. Their kids learned English and taught them. They didn’t demand that everything be written in German. I do see the ones that work 2 jobs, I do see the ones who clean offices at night because sometimes I am there still working. I see the ones who bag at the grocery store because I say thank you. I do see the woman walking down the side of the freeway because she has run out of gas because I pick her up and take her back to her car. You’re right…I don’t have a passport because I can’t afford to get one. I am one of the 25% that works full time and gets no sick days, no vacation days and I get no overtime pay even if I work Monday through Sunday. I have actually have had people get mad at me because I would not meet with them on my daughters birthday. For those who don’t have a drivers license, they can get an ID. I have to have an ID to open a bank account. I have to have an ID to cash a check. I would think that anyone else would too unless I am being unfairly targeted. Students who have no ID….classes have to be paid for. They have to have money to pay for those classes. How do they cash checks when I can’t cash a check or open an account without a valid ID? Same goes for those who have to make a 250 mile round trip…how do they live with no money, no bank account and no way to cash a check? I bet you there would be plenty of groups who would put together a car pool to get these people there and back. I know what it is like to get paperwork after a burn down….it isn’t easy. As for names being correct…Yes, you can not get a loan unless your ID matches, you can’t get a nursing license unless your name matches. That happens with any number of things and you HAVE to get it changed. They don’t care what your excuse is it HAS to be done. It also does not have to be the original, my guess is a certified copy will do. You talk about uneven burdens??? I see uneven burdens every single day and it is usually burdening the person who has done the right thing and has worked hard to get what they have and get where they are today.

  • Michael McKinzy Sr

    I registered to vote over the internet at the main library in Overland Park, Johnson County, Kansas for the 2012 U.S. Presidential Election and voted early, as the old saying goes you can”t have your cake and eat it too, however, EVoteTechnology – Palm Vein Authentication protocol for registered voters shall eradicate voter fraud in Kansas!-Born to do battle, drafted at birth.a.k.a.Warrior Breed!-Michael E. McKinzy,Sr.-10-25-2013

  • fmendoza

    ARIZONA IS A RIGHT-WING NUT JOBS PARADISE. IF THERE IS A CONSTITUTION. AND BILL OF RIGHTS IN THIS COUNTRY. YOU WOULDN’T KNOW IT. BY THE AMOUNT OF UNCONSTITUTIONAL LEGISLATION BEING PASSED. BY ARIZONA’S CONFEDERATE LEGISLTATORS. WHAT ARIZONA DOESN’T KNOW IS THAT ENUMERATED RIGHT’S GRANTED BY THE U.S. CONTITUTION. CAN ONLY BE INFRINGE UPON, OR OBLISHED. BY THE CONGRESS OF THE UNITED STATES. RATIFIED BY 2/3 MAJORITY OF THE STATES. AND SIGNED BY THE PRESIDENT. IT’S TIME SOMEONE REMINDED THIS CONFDERATE STATE. THAT THEY CANNOT PICK @ CHOOSE WHICH PARTS OF THE CONSTITUTION THEY’LL ABIDE BY. AND WHICH PARTS THEY WON’T ABIDE BY. THEY EITHER ABIDE BY THE WHOLE COSTITUTION. OR CECEDE FROM THE UNION. YES YOU CAN SUE ARIZONA’S GOV. @ LEGISLATURE IN COURT. AND CHARGE THEM WITH VIOLATING THE CONSTITUTION AND THE RIGHTS OF PEOPLE. AND YES YOU CAN EVEN CHARGE THE GOV. AND LEGISLATURE WITH SEDITION AGAINST THE UNION. I HOPE THE A.C.L.U. GETS A COPY OF THIS POSTING. FMENDOZA CITIZEN.

  • fmendoza

    FORGOT TO MENTION JAN BREWER AND ARIZONA. OPEN THEMSELVE AND THE STATE TO CRIMMINAL AND FINANCIAL DAMAGES. FOR VIOLATING CONSTITUTIONAL RIGHTS OF TH PEOPLE OF ARIZONA.

  • Anonymous

    Sadly, the people trying to help those who are being hurt by the transparent attempts to disenfranchise poor and minority voters don’t even have the people they’re trying to help on their side.

    These laws are wrong, but I’ve had and continuously carried ID since the age of 16, and I know It’s easy and inexpensive to prove US citizenship and get ID. It’s sad that the people being hurt by these laws often aren’t willing to expend any effort to overcome the very low hurdles their political enemies put in their way.

    These laws exist to disenfranchise their sponsors’ political enemies, but overcoming the tiny barriers to voting they create is so easy nobody feels outraged about them. It’s wrong, but it’s hard for the majority of voters to feel much sympathy for those unwilling to do what most every American has done since high school.