Supreme Court Turns Down Red State Bid to Salvage Proof of Citizenship Voter Law

Former Kansas secretary of state Kris Kobach (R.) / Saul Loeb/AFP via Getty Image
December 14, 2020

The Supreme Court on Monday turned down a request to salvage a Kansas law that required residents to provide proof of citizenship when registering to vote, despite pleas from Kansas lawyers and almost 20 red states.

Kansas's red-state allies used the case to mount a broader attack on a legal test that in their view gives judges too much power in election-security disputes. Former Kansas secretary of state Kris Kobach (R.) championed the law and personally defended it in court against an ACLU lawsuit.

The Secure and Fair Elections (SAFE) Act required Kansans to produce documentary proof of citizenship when registering to vote. U.S. District Judge Julie Robinson struck the SAFE Act down in 2018. Robinson said it conflicted with a federal law that requires state officials to use "the minimum amount of information necessary" to determine voter eligibility. She also found the SAFE Act unconstitutional, saying the burden it placed on voters outweighed the state's interest in protecting elections.

A coalition of 18 red states seized on Robinson's second finding to push for a bigger change in election law. Relying on two Supreme Court cases from the 1980s and 1990s, federal courts usually compare benefits against burdens when reviewing voting rules. In a legal brief to the justices, the red states argued that approach isn't objective and leads to inconsistent results. They urged the Court to hear the Kansas case and use it to jettison the balancing test for election laws.

"[B]alancing the pros and cons of a given law is not a judicial analysis. And … it does not lead to uniformity in decisions or predictability in outcomes," the red states' brief reads. "The Court should take this opportunity to clarify that election laws are not subject to a freestanding balancing analysis."

About 30,000 voter applications were denied under the SAFE Act, compared with 129 noncitizens who registered or attempted to register. Dale Ho, the director of the ACLU's voting-rights project, said the "Supreme Court's decision not to review the case will finally close this chapter on Kris Kobach's sorry legacy of voter suppression."

Robinson sanctioned Kobach for repeated misconduct at trial and failure to follow court orders. He was considered for several posts in the Trump administration, including homeland-security secretary and immigration-policy czar.

The Kansas attorney general's office did not return a request for comment by press time. The case is No. 20-109 Schwab v. Fish.