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Rule Creating Two-Tiered Kansas Voting System Approved with Little Notice

Elections Director Bryan Caskey (left) and state Sen. Vicki Schmidt discuss the proposal during the meeting. (Photo by Stephen Koranda)

With little notice, a state panel has approved a temporary election rule that will have some Kansans vote with provisional ballots, but only their votes in federal races will be counted. Votes for state and local races will be tossed out.

The rule was proposed by Republican Secretary of State Kris Kobach. The Kansas Rules and Regulations Board approved it Tuesday morning after notice for the meeting was sent out Monday afternoon.

The change will affect around 17,000 Kansans who registered to vote at the DMV but didn't turn in a citizenship document required under state law. The rule change comes after a federal court said those suspended voters should be allowed to vote, at least in federal races.

Bryan Brown, an attorney in the secretary of state’s office, said the move lets them comply with the court while still upholding election security measures in the SAFE Act.

“It has been passed by the Legislature. It has been signed by the governor. It is the law of Kansas. That is all the secretary of state is trying to do here,” said Brown.

During a tense meeting, some members of the panel clearly weren't happy with the process. Republican Senator Vicki Schmidt criticized the secretary of state’s staff for not brining the proposal to lawmakers before the end of the legislative session.

“Why was it not brought before the Legislature on sine die or during the special session to allow the entire Legislature the opportunity to weigh in on such an important issue?” asked Schmidt.

Kobach didn't attend the meeting, but his staff members responded that the issue was under appeal while the Legislature was meeting. Schmidt pointed out that the issue was also still under appeal while they considered the rule change.

Schmidt said this regulation would affect her race, so she abstained from voting. She said she asked to be replaced on the panel, but with the short notice before the meeting that wasn’t possible.

Republican Representative Sharon Schwartz supported the regulation, noting that she’s not running for reelection. However, Schwartz wanted the regulation to go through the normal process, which allows for public comment and gives officials more time to consider the impact.

“It would have given us time to have had legal counsel somewhere along the line help us out,” said Schwartz.

An attorney in one of the lawsuits challenging Kansas voting rules, Mark Johnson, called the speedy process a “circus.” Johnson, who’s also a law professor at KU, said something of this significance deserves a full hearing before the public.

“I tell my students that it’s important to honor the process. This dishonors the process,” said Johnson.

Johnson pointed out that a state court has said Kobach can’t create this type of two-tiered voting system. Kobach’s office has appealed that decision.

The process looked like a back-room deal aimed at impacting the upcoming elections, according to Democratic Representative Jim Ward.

“I think these people are trying to interfere in a highly competitive election. You look around this state in the next three weeks there are going to be a dozen races decided by 100 votes,” said Ward.

Kobach’s elections director, Bryan Caskey, fired back at Ward’s assertion.

“I unequivocally state that I want every single person who is eligible to vote under the laws of the state of Kansas to vote,” said Caskey.

Caskey said the short timeframe for the meeting was because the proposed regulation wasn’t approved by the attorney general’s office and Department of Administration until Friday. Caskey said the rule needed to be in place by Wednesday, when early voting starts.

“We found out after 5 (p.m.) on Friday. Quite frankly, that’s as fast as we could possibly have a hearing,” said Caskey.

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