Kansas once required voters to prove citizenship. That didn’t work out so well

United States election confusion and Community vote or voting crisis concept as hands holding votes casting ballots in a tangled American flag as voters confused with 3D illustration elements.

Republicans made claims about illegal voting by noncitizens a centerpiece of their 2024 campaign messaging and plan to push legislation in the new Congress requiring voters to provide proof of U.S. citizenship. Yet there’s one place with a GOP supermajority where linking voting to citizenship appears to be a nonstarter: Kansas.

That’s because the state has been there, done that, and all but a few Republicans would prefer not to go there again. Over a decade ago, Kansas imposed a proof-of-citizenship requirement that grew into one of the biggest political fiascos in the state in recent memory.

The law, passed by the state Legislature in 2011 and implemented two years later, blocked the voter registrations of more than 31,000 otherwise eligible U.S. citizens. That was 12% of everyone seeking to register in Kansas for the first time. Federal courts ultimately declared the law an unconstitutional burden on voting rights, and it hasn’t been enforced since 2018.

Kansas provides a cautionary tale about how pursuing an election concern that, in fact, is extremely rare risks disenfranchising a far greater number of people who are legally entitled to vote. The state’s top elections official, Secretary of State Scott Schwab, championed the idea as a legislator and now says states and the federal government shouldn’t touch it.

“Kansas did that 10 years ago,” said Schwab, a Republican. “It didn’t work out so well.”

Steven Fish, a 45-year-old warehouse worker in eastern Kansas, said he understands the motivation behind the law. In his mind, the state is like a store owner who fears getting robbed and installs locks. But in 2014, after the birth of his now 11-year-old son inspired him to be “a little more responsible” and follow politics, he didn’t have an acceptable copy of his birth certificate to register to vote in Kansas.

“The locks didn’t work,” said Fish, one of nine Kansas residents who sued the state over the law. “You caught a bunch of people who didn’t do anything wrong.”

Kansas’ experience appeared to receive little if any attention outside the state as Republicans elsewhere pursued proof-of-citizenship requirements this year.

Arizona enacted a proof-of-citizenship requirement this year, applying it to voting for state and local elections but not for Congress or the president. The Republican-led U.S. House passed a similar requirement in the summer and plans to bring back similar legislation after the GOP wins control of the Senate in November.

In Ohio, the Republican secretary of state revised the form poll workers use for voter eligibility challenges to require those not born in the U.S. to show their naturalization papers to cast a regular ballot. Days before the election, a federal judge declined to block the practice.

Also, sizable majorities of voters in Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and the presidential swing states of North Carolina and Wisconsin were inspired to amend their state constitutions’ voting provisions, even though the changes were only symbolic. Provisions that previously declared that all U.S. citizens could vote now say that only U.S. citizens can vote—a meaningless distinction with no practical effect on who is eligible.

To be clear, voters must already attest to being U.S. citizens when they register to vote, and noncitizens who lie and are caught can face fines, prison time, and deportation.

“There is nothing unconstitutional about ensuring that only American citizens can vote in American elections,” U.S. Rep. Chip Roy, a Republican from Texas, the leading sponsor of the congressional proposal, said in an email to The Associated Press.

After Kansas residents challenged their state’s law, a federal judge and federal appeals court concluded that it violated a law limiting states to collecting only the minimum information needed to determine whether someone is eligible to vote. Congress could resolve that issue.

The courts ruled that with “scant” evidence of an actual problem, Kansas couldn’t justify a law keeping hundreds of eligible citizens from registering for every improperly registered noncitizen. A federal judge concluded that the state’s evidence showed that only 39 noncitizens registered to vote from 1999 through 2012 — an average of just three a year.

In 2013, then-Kansas Secretary of State Kris Kobach, a Republican who had built a national reputation advocating tough immigration laws, described the possibility of voting by immigrants living in the U.S. illegally as a serious threat. He was elected attorney general in 2022 and still strongly backs the idea, arguing that federal court rulings in the Kansas case “almost certainly got it wrong.”

Kobach also said a key issue in the legal challenge — people’s inability to fix problems with their registrations within a 90-day window — has probably been solved.

“The technological challenge of how quickly can you verify someone’s citizenship is getting easier,” Kobach said. “As time goes on, it will get even easier.”

The U.S. Supreme Court refused to hear the Kansas case in 2020. However, in August, it split 5-4 to allow Arizona to continue enforcing its law on voting in state and local elections while a legal challenge proceeds.

When his state’s law was challenged, U.S. Rep.-elect Derek Schmidt, the Kansas Attorney General at the time, said states and Congress should pursue proof-of-citizenship requirements. Schmidt sees the possibility of a different Supreme Court decision in the future.

“If the same matter arose now and was litigated, the facts would be different,” he said in an interview.

However, voting rights advocates dismiss the idea that a legal challenge would turn out differently. One of the attorneys who fought the Kansas law, Mark Johnson, said opponents now have a template for a successful court fight.

“We know the people we can call,” Johnson said. “We know that we’ve got the expert witnesses. We know how to try things like this.” He predicted “a flurry — a landslide — of litigation against this.”

Initially, the Kansas requirement heavily impacted the politically unaffiliated and young voters. As of fall 2013, 57% of the voters blocked from registering were unaffiliated, and 40% were under 30.

But Fish was in his mid-30s; six of the nine residents who sued over the Kansas law were 35 or older. According to court documents, three even produced citizenship documents and still didn’t get registered.

“There wasn’t a single one of us that was actually an illegal or had misinterpreted or misrepresented any information or had done anything wrong,” Fish said.

He was supposed to produce his birth certificate when he sought to register in 2014 while renewing his Kansas driver’s license at an office in a strip mall in Lawrence. A clerk wouldn’t accept the copy Fish had of his birth certificate. He still doesn’t know where to find the original, having been born on an Air Force base in Illinois that closed in the 1990s.

Several veterans who joined Fish in the lawsuit were born in the U.S., and Fish said he was stunned that they could be prevented from registering.

Liz Azore, a senior adviser to the nonpartisan Voting Rights Lab, said millions of Americans haven’t traveled outside the U.S. and don’t have passports that might act as proof of citizenship or don’t have ready access to their birth certificates.

She and other voting rights advocates are skeptical that there are administrative fixes that will make a proof-of-citizenship law run more smoothly today than it did in Kansas a decade ago.

“It’s going to cover a lot of people from all walks of life,” Avore said. “It’s going to be disenfranchising large swaths of the country.”

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Republished with permission of the Associated Press.