Developments in Kansas
Election Law and Voting
Rights Law
Mark Johnson
May 19-20, 2016
University of Kansas School of Law
RECENT FEDERAL AND KANSAS
DEVELOPMENTS IN ELECTION LAW,
VOTING RIGHTS, AND CAMPAIGN FINANCE
MARK P. JOHNSON
DENTONS US LLP
May 19, 2016
University of Kansas School of Law
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ELECTION LAW, VOTING RIGHTS, AND CAMPAIGN
FINANCE
Mark P. Johnson
Dentons US, LLP
Lecturer, University of Kansas School of Law
And
The William Allen White School of Journalism and Mass
Communications
This paper addresses recent developments in Kansas and federal law
on elections, voting rights, and campaign finance. These areas of the law
are complex and constantly changing, sensitive to the political winds in the
country.
A. Kansas Developments
1. Election Law
a. Changing Party Affiliation
During the 2014 session the Legislature adopted HB 2210, which limits
voters' ability to change party affiliation between the candidate filing deadline
for the primary election, in which the political parties select their nominees
for office, and date of the primary election. Between the filing deadline of
June 1 (or the next business day if June 1 falls on a weekend) and the date
on which the Secretary of State certifies the primary results (usually shortly
after the primary is held on the first Tuesday in August, but not later than
September 1), voters may not change their party affiliation.
The purpose of the legislation was to end the practice of voters
changing party affiliation so they could vote in the primary for a candidate of
their preference, even though they are not good faith party supporters. Prior
to this change, voters could change their party affiliation up to 14 days before
a primary. Since Kansas runs "closed" primaries, that is, only declared
members of a political party may vote in that party's primary, declaration of
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party affiliation is a sine qua non to voting in a party's primary. On the other
hand, new registrants or previously unaffiliated voters may declare a party
affiliation up to the day of the primary.
b. Dates for Municipal and County Elections
It has been common practice for municipal and local elections to be
held at times of the year other than the traditional first Tuesday of November.
The Legislature in 2015 adopted HB 2104, which will move municipal and
local elections to November of odd-numbered years. Beginning with the next
election after the 2015 legislation, municipal elections will be held in the fall,
generally on the first Tuesday in November. However, the legislation did not
change the requirement that all such elections would remain nonpartisan.
c. Replacement of Candidates That Have Withdrawn
The 2014 U.S. Senate election in Kansas saw the anomalous
phenomenon of the candidate of a major political party, having won his
party's nomination in a contested August primary, withdrawing from the race
without a replacement candidate. At least in part to prevent this situation
from arising again, the Legislature included in HB 2104 provisions limiting
the circumstances under which a candidate may withdraw (severe medical
hardship or non-residence in Kansas) and requiring parties to fill nominations
if a candidate withdraws.
HB 2104 specifies the process for designation of a new candidate. The
party committee for the relevant voting district (Congressional, county, or
state) must meet within 10 days of the vacancy and select a replacement
candidate. The selection will be made by the party committee; there is no
repeat primary election.
2. Voting Rights
a. Voter Identification Law
Kansas joined many other states in 2011 when it enacted a law
requiring voters to produce photo identification when appearing at a polling
place to cast a ballot. Kansas Safe and Fair Election Act, HB 2067, 2011
Session Laws, Ch. 56. Beginning in 2012, voters had present photo ID when
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casting a vote in person, and in 2013, a voter had to prove U.S. citizenship
when registering to vote. The provisions of the voter ID law may be found at
K.S.A. 8-1324(g)(2), 25-1122, 25-2908, and 25-3002.
The constitutionality of the voter identification and proof of citizenship
requirements are being challenged in lawsuits filed in both U.S. District Court
and Kansas state court, as discussed below.
b. Voter Registration Law
Recognizing that the proof of citizenship requirement may be
preempted at least in part by federal law, the Secretary of State has created
a bifurcated voting system, in which individuals who register using a
federally-approved voter registration form which does not require proof of
citizenship are allowed to vote in federal elections but not state elections.
That bifurcated voting system has been found unlawful by a judge in
Shawnee County District Court. Belenky v. Jones, Case No. 2013-cv-1331
(District Court of Shawnee County, January 15, 2016). All parties anticipate
that the Secretary will appeal that decision.
Two cases are pending in U.S. District Court challenging the
constitutionality of the proof of citizenship requirement included in the 2011
SAFE Act. Keener et al. v. Kobach, Case No. 15-cv-9300 (D. Kan.); Fish et
al. v. Kobach, Case No. 16-cv-01205 (D. Kan.). The plaintiffs in those cases
are also challenging a regulation promulgated by the Secretary of State to
handle registrants who fail to provide all information called for by the SAFE
Act. Failure to provide proof of U.S. citizenship accounts for nearly all
deficient registrations. Under K.A.R. 7-23-15, issued by the Secretary in mid2015 and effective October 2, 2015, such deficient registrations are
designated as “incomplete,” and they are placed on a suspense list for ninety
days. During the ninety-day period such registrations spend on the
suspense list, the registrant may provide the needed information. If the
ninety-day period expires without the registrant providing the information, the
Secretary has instructed the county election officers, who are responsible for
updating information in the state registration list, to switch the designation
from “suspended” to “cancelled.” At that point the registrant must complete
the registration process anew.
c. Ballot and Registration Forms
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As noted above, in 2011 the Legislature passed the SAFE Act, which
requires Kansans to provide proof of U.S. citizenship when they seek to
register to vote.
In Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247 (2013),
the Supreme Court had ruled that Arizona's voter registration law, which is
quite similar to the Kansas statute, could not be used to require proof of
citizenship for voter registration using a form issued by the federal Election
Assistance Commission. Under the National Voter Registration Act, 42
U.S.C. Sections 1973gg – 1973gg-10, passed in 1993, a simple voter
registration card is used to register to vote. The states of Kansas and
Arizone sought an order requiring the EAC to modify the federal registration
form to include the proof of citizenship requirement in the states' laws. The
EAC had denied that request, so the states appealed to federal court.
The Tenth Circuit held in 2014 that the federal registration form does
not have to include the state law proof of citizenship requirement. Kobach
v. United States Election Assistance Commission, 772 F.3d 1183 (10th Cir.
2014). The Supreme Court a petition for a writ of certiorari on June 29, 2015.
However, on January 29, 2016, the Executive Director of the Election
Assistance Commission, responding to requests from Arizona, Kansas, and
Georgia, announced that the federal registration forms used for those states
would be changed to include a requirement that the registration provide proof
of U.S. citizenship. A challenge to that decision has been filed and is now
pending in the U.S. District Court for the District of Columbia. League of
Women Voters v. EAC, Case No. 16-00236 (D. District of Columbia).
d. Prosecutions for Double Voting
The Legislature passed SB 34 in 2015, giving the Secretary of State
the power to prosecute violations of the Kansas voting laws. The Secretary
has brought six cases since September, 2015, in which he has alleged that
the defendants voted in more than one state. There have been no
prosecutions brought for voter impersonation, the ostensible grounds for the
photo ID provision of the SAFE Act, or for non-citizen voting, the basis for
the SAFE Act's proof of citizenship requirement. In a press release issued
January 25, 2016, the Secretary announced that his office had brought
prosecutions against six individuals, all for double voting in Kansas and other
states. He also indicated support for legislation that would call for postelection audits to verify proper operation of voting equipment. HB 2543 calls
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for such audits, but has not been passed by either house in the Legislature
and is unlikely to do so in this legislative session.
B. Federal Developments
1. Election Law
a. Constitutionality of State Redistricting Commissions
Under Article I, Section 4 of the U.S. Constitution, state legislatures
determine the boundaries of districts for the election of members of the U.S.
House of Representatives. Each state also determines district boundaries
for elections to state legislative office, as well as to other elections to
positions involving district representation (for example, the Kansas Board of
Education, whose ten members represent districts, each of which is made
up of four State Senate districts under Kansas Constitution Article 6 Section
3(a)).
Several states, including Arizona, have chosen to use non-partisan
commissions to draw the district lines.
The Arizona Independent
Redistricting Commission is responsible for redrawing district lines after the
results of the decennial Census are made available. In a procedure approved
by the Arizona voters pursuant to a ballot initiative, the five members of the
Commission draw the Congressional district lines. The constitutionality of the
Commission was challenged by the Arizona Legislature, from which the duty
of redistricting had been taken by the popular initiative.
The constitutionality of the Arizona Commission was upheld by the
Supreme Court in June, 2015. Arizona State Legislature v. Arizona
Independent Redistricting Commission, 135 S.Ct. 2652 (2015). By a margin
of 5-4, the Court found that the process used to designate the Commission
through ballot initiative was consistent with Article I, Section 4 of the
Constitution because the people of Arizona were, in effect, acting in a
legislative capacity when they decided to have an independent commission
perform the redistricting function. This decision provides a promising path to
reducing the impact of partisan gerrymandering, which has been the subject
of much controversy in recent decades and which the Supreme Court has
chosen not to confront. Vieth v. Jubelirer, 541 U.S. 267 (2004).
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2. Voting Rights
a. Voting Rights Act
In Shelby County v. Holder, 570 U.S. 193 (2013), the Supreme Court
found unconstitutional the formula used to determine application of the
preclearance procedure in the Voting Rights Act. The Voting Rights Act, 52
U.S.C. Sections 10301-10314, was passed in 1965 to implement the
Fifteenth Amendment to the Constitution, and inter alia prohibits the states
from adopting procedures that infringe on the right to vote on the basis of
race or color. Section 5 of the Voting Rights Act provides that certain states,
and all of the political subdivisions of those states, must seek prior approval
from the Department of Justice or the U.S. District Court for the District of
Columbia before they may institute any changes in their election processes
or procedures. This approval process is referred to "preclearance."
The states subject to Section 5 preclearance were determined by
application of a formula set forth in Section 4(b) of the VRA, which focused
on the percentage of the voting age population registered to vote or actually
voting in the 1964 Presidential election. Congress chose to readopt the
Section 4(b) formula when it renewed the Voting Rights Act in 2006.
In Shelby County, an Alabama county brought a direct challenge to
Section 5, arguing that preclearance was unconstitutional. The Court
majority chose another route to afford the relief sought by Shelby County,
finding that the Section 4(b) formula which placed all of Alabama under the
preclearance requirement was so old, and its application so out of date, as
to constitute a violation of "equal sovereignty," a concept that the Court
majority stated requires that the federal government treat all states in a
nondiscriminatory fashion. By relying on the outmoded Section 4(b) formula,
the majority found, the Voting Rights Act treated the covered states in a
discriminatory fashion.
The Court had presaged the Shelby County decision four years earlier,
in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193
(2009), where the Court indicated significant skepticism about the continued
viability of the Section 4(b) formula. However, the Court had decided the
case on other grounds, granting the relief sought on statutory grounds. Many
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observers have indicated that Northwest Austin was a warning to Congress:
fix the formula or the Court will find it unconstitutional when next presented
with an opportunity to do so. Congress did not act, the formula was not
changed, and the majority declared it unconstitutional in Shelby County.
By finding the Section 4(b) formula unconstitutional, the Court
effectively ended Section 5 preclearance, ending for the time being (until
Congress chooses to adopt a formula that will withstand judicial scrutiny) the
practice of preclearance. Thus, the states that were unhappy about
preclearance have effectively obtained the relief they were seeking. Since
Shelby County the "preclearance" states have instituted many changes in
voting procedures that would have subject to preclearance. Observers have
concluded that many of the changes (e.g., reducing the number of polling
places and adopting strict voter ID requirements) have already started to
affect voting patterns.
In a closely-watched case involving a North Carolina law passed
shortly after Shelby County, and which mandated substantial changes in that
state's election system, the U.S. District Court for the Middle District of North
Carolina ruled on April 26, 2016, that the law did not violate the Voting Rights
Act or violate the Equal Protection rights of North Carolina voters. North
Carolina State Conference of the NAACP v. McCrory, Case No. 13CV658
(M.D. N.C., April 26, 2016). The changes contained in the state statute,
including reductions in advance voting and a requirement for voter ID at the
polls, would have been subject preclearance prior to Shelby County, but with
the Supreme Court's decision the plaintiffs bore the burden of proving that
the changes adversely affected the voting rights of racial minorities and that
the state's articulated reasons for adopting the law were not worthy of
credence. The court found that the state's reasons for adopting the law were
rational and worthy of belief:
The State’s proffered justifications for the combined mechanisms
under review here are consistent with the larger purpose of achieving
integrity, uniformity, and efficiency in the political process. Collectively,
the changes were designed to make early-voting locations more
numerous and evenly distributed and voting hours more uniform;
reduce the number of individuals who forego traditional registration
(where they can be subjected to statutory mail verification) and instead
register and vote too close to Election Day such that their vote is
counted despite later failing mail verification; re-establish the benefits
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of a precinct-based system..; reduce voter confusion among preregistrants; and, as recognized in Crawford, promote the integrity and
reliability of the electoral process while increasing public confidence in
North Carolina’s electoral system through implementation of a voter-ID
requirement. These are legitimate and consistent interests.
(slip opinion, at 410). The effect on voters did not outweigh the state's reason
for adopting the law. The case is no doubt headed for the Fourth Circuit,
which has been less than sympathetic to state statutes restricting minority
voting rights, and will in all probability eventually come before the Supreme
Court.
b. Racial Gerrymandering
Drawing legislative district lines is among the most contentious
activities of a state government.
In most states the legislature
simultaneously draws Congressional and state elective district lines, usually
in the year after the results of the decennial Census are released by the
federal government. It should not come as a surprise that the political parties
have long sought to maximize their advantage in elections by drawing lines
to their benefit. This process is called gerrymandering, and the federal law
and courts have sought to limit gerrymandering which relies on certain
factors. As noted above, the Supreme Court has indicated a reluctance to
become involved in cases alleging gerrymandering limited to achieve
partisan political advantage. Vieth v. Jubilerer, 541 U.S. 267 (2004).
However, due to the Fifteenth Amendment and the Voting Rights Act, the
Supreme Court has repeatedly stated that gerrymandering on the basis of
race unlawful. Thus, gerrymandering which is either intended to, or has the
effect of, discriminating against voters on racial grounds, is unlawful.
In Alabama Legislative Black Caucus v. Alabama, 135 S.Ct. 1257
(2015), the 5-4 majority held that racial gerrymandering challenges need not
look at the entire state to determine whether racial minorities had been
unlawfully affected by redistricting, but rather may consider the impact on a
district by district basis. In that case the specific claim was that the Alabama
legislature had "packed" black voters into a few legislative districts,
effectively reducing the percentage of black voters in a number of districts.
The act of "packing" usually results in "majority-minority" districts in which
minority candidates are likely to win, but is often intended to reduce minority
opportunities in many other of districts. The majority in that case pointed to
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a district, already nearly 73% black, into which almost 16,000 people had
been shifted, only 36 of whom were white. The Court majority found this
"remarkable," and expressed skepticism that it could have happened in the
absence of racial animus. The Court remanded the case to the three-judge
panel that had approved the redistricting.
c. Voter ID Law Litigation
Since 2008, when the Supreme Court upheld an Indiana photo ID law
in the face of Voting Rights Act and Equal Protection challenges in Crawford
v. Marion County Election Board, 553 U.S. 181 (2008), many American
states have adopted laws that require voters to produce some form of photo
ID upon appearance at a polling place to vote. Kansas enacted a photo ID
law in 2011 as part of the SAFE Act. 2011 Session Laws, Ch. 56. The
relevant provisions of that bill may be found at K.S.A. 25-2908.
Several of the state photo ID laws have been challenged in court. For
example, Wisconsin enacted a photo ID statute in 2011, soon after the
Governorship and both Houses of the State Legislature passed from
Democratic to Republican control in the 2010 elections. 2011 Wis. Act 23,
to be found at Wis. Stat. Sections 5.02(6m) and 6.79(2)(a). The Wisconsin
law requires voters to produce at least one piece of photo identification at
the polling place.
The statute was challenged by several advocacy groups, and has now
made its way through the courts. Frank v. Walker, 768 F.3d 744(7th Cir.
2014), cert. denied, 135 U.S. 1551 (2015). Although the District Judge found
that up to 9% of the eligible electorate in Wisconsin lacks the requisite ID,
the three-judge panel of the Seventh Circuit reversed, finding no violation of
Section 2 of the Voting Right Act, 52 U.S.C. Section 10301, or the Equal
Protection Clause of the Fourteenth Amendment.
In an April, 2016 Seventh Circuit opinion in the Frank case, the court
stated that the plaintiffs could go back to District Court to raise arguments
concerning the impact of the Wisconsin statute on individuals that
experience "high hurdles" in obtaining the required photo ID. The court noted
that unlike the Indiana law upheld in Crawford, the Wisconsin law did not
allow the voters to state by affidavit that they are unable to obtain the photo
ID, and in such circumstances their votes would be counted. The Wisconsin
law (just like the Kansas SAFE Act) requires the voter to provide the photo
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ID within a short time after the election, and if unable to do so, the ballots
initially voted provisionally are not counted. The court said that individuals
who can show that they personally have great difficulty in obtaining a photo
ID should be able to have their vote counted, and the District Court should
adjudicate whether the Wisconsin statute was unconstitutional for failing to
include such a provision for verification by affidavit. Frank v. Walker, No. 153582 (7th Cir., April 12, 2016). Kansans should continue to follow the
progress of this litigation in light of the similarity of the Wisconsin law and the
Kansas SAFE Act post-election identification verification provisions.
d. One-Person, One-Vote
In a case that could have significantly affected election patterns, the
Supreme Court recently upheld the traditional practice of counting population
for redistricting purposes to include citizens who are not qualified to vote. In
Evenwel v. Abbott, ___ U.S. ___, No. 15-940 (April 4, 2016), the Supreme
Court decided that the use of total population, rather than only voters, was a
proper method for counting the number of individuals to include in a
legislative district. The counting of population is a crucial function in the
redistricting process because of the requirement of one-person, one-vote,
that is, all persons are to be equally represented and their voters are to be
according equal weight. Wesberry v. Sanders,
376 U. S. 1, 7–8 (1964), Reynolds v. Sims, 377 U. S. 533, 568 (1964). This
requirement applies to both federal and state elective offices.
In Evenwel the petitioners argued that only voter-eligible members of
the population should be counted, excluding all who cannot vote, whether
due to age (younger than 18), alien status, or loss of the right to vote for
various reasons (e.g., most states place limitations on the voting rights of
felons, even after completion of their sentences). The Court unanimously
rejected that argument, stating that "adopting voter-eligible apportionment as
constitutional command would upset a well-functioning approach to
districting that all 50 states and countless local jurisdictions have followed for
decades, even centuries. Appellants have shown no reason for the court to
disturb this longstanding use of total population." (Slip Opinion, at 18). The
Court did not say that total population had to be used, simply that it was
constitutional to use that method. As nearly every jurisdiction in the country
uses that method, and only that method, it is unlikely that there will be a
stampede to using another method.
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Although the one-person, one-vote rule requires that districts have
substantially equal population numbers, the Supreme Court on April 20,
2016, held that the Arizona Independent Redistricting Commission could set
state legislative district lines that resulted in population disparities up more
than 8%. In Harris v. Arizona Independent Redistricting Commission, __
U.S. ___, No. 14-232 (U.S., April 20, 2016), the Court held that perfect
apportionment is not necessary to meet the requirements of the Voting
Rights Act. The Court found that the plaintiffs, who challenged the
Commission's determinations, bore the burden of proof and that they had
failed to prove it was more likely than not that unlawful discriminatory animus
had led to the Commission's decision. Even though the population deviation
among the legislative districts was greater than the Court has previously
allowed, the Court held unanimously that the failure to demonstrate unlawful
discriminatory intent or impact was fatal to the plaintiffs' claims.
3. Campaign Finance
a. Cap on Individual Contributions to Federal Candidates and Parties
In McCutcheon v. FEC, 572 U.S. ____ (2014), the Supreme Court
invalidated 2 U.S.C. Section 441a(a)(3), a part of the Bi-Partisan Campaign
Reform Act of 2002, that limited the total amount an individual could
contribute to candidate campaign committees and other political committees.
Individual contributions made directly to campaigns are referred to as "hard
money." The amount of such contributions may be limited to $5,400 per
candidate per two-year election cycle. The aggregate of hard money
contributions -- the amount contributed to all candidates -- was the subject
of McCutcheon. Holding the unlimited contributions to individual candidates
was inherently corrupting, the Supreme Court in Buckley v. Valeo, 424 U.S.
1(1976), found such limits did not violate the First Amendment. However, in
McCutcheon the Court said that limits on aggregate contributions did violate
the contributor's First Amendment rights.
Thus, the hard money
contributions limits had been dealt with.
On the other hand, political contributions to entities other than
candidate committees are typically referred to as "soft money." A case now
pending in the U.S. District Court for the District of Columbia challenges the
federal limits on contributions to political parties, which are considered soft
money. Republican Party of Louisiana v. Federal Electric Commission, No.
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15-01241. This case is being heard by the District Court under the BCRA's
provision for a three-judge panel, and the decision of that Court will be
appealed directly to the Supreme Court. In the next year the Supreme Court
will be faced with a direct challenge to the limits on soft money contributions.
b. Increase in Per Election Contributions
The Federal Election Commission announced in January, 2015 that
the amount an individual can contribute directly to a candidate campaign
committee would increase from $2,600 per election to $2,700 per election,
for the 2015-16 election cycle, as a result of the inflation indexing called for
in 2 U.S.C. Section 441a.
The amount of contributions is set at a per
election amount, so candidates for federal elective office (Congress and
Senate) who have both a primary and general election may receive up the
$5,400 from individuals donors, or $2,700 per election.
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