Update of Federal and Kansas Election Law Mark Johnson. May 17-18, 2018 University of Kansas School of Law

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1 Update of Federal and Kansas Election Law Mark Johnson May 17-18, 2018 University of Kansas School of Law

2 RECENT FEDERAL AND KANSAS DEVELOPMENTS IN ELECTION LAW, VOTING RIGHTS, AND CAMPAIGN FINANCE MARK P. JOHNSON DENTONS US LLP May 17, 2018 University of Kansas School of Law 1

3 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. HB Changes in Kansas election law in 2017 and 2018 have been largely technical. In 2017 the Legislature passed HB 2017, principally applicable to the rules for filling vacancies in the State's Congressional delegation. This legislation was intended to bring Kansas into line with federal law in the case of special elections to fill a Congressional seat. The timing for the election was lengthened to 75 to 90 days after the Governor sets the date of the election because of the timing requirements for mailing ballots to overseas and military voters. The election previously was held between 45 and 60 days after the Governor's announcement. Further, under previous law only the Republican and Democratic parties could hold conventions to select a nominee for the special election. Smaller parties, such as the Libertarians, would not have drawn enough votes in previous elections to allow them to hold a convention. The bill changed that, allowing any recognized party to hold a convention to select their nominee. Finally, HB 2017 extended the time for the counties and the Secretary of State to count the ballots (also known as canvassing the votes) in the special election from two and four days, respectively, to three and six days. This allows more time to determine the eligibility of provisional voters and to count their ballots. In SB 43, also adopted during the 2017 legislative session, a few technical changes were made to the laws enacted by HB With respect to the canvassing dates, SB 43 moved them from three and six days after the election to have the county canvass coincide with the provisions of K.S.A , which calls for canvasses to occur no later than the Monday after an election occurring on Tuesday of the preceding 2

4 week, and then the statewide canvass conducted by the Secretary of State would take place within three days after the county canvass. Thus, in nearly all cases, the county canvass would take place six days after the special election and the statewide canvass three days later. b. HB During the 2017 legislative session HB 2158 was enacted, dealing with the use and counting of advance ballots and changes in the location of polling places. If a county election officer changes the location of a polling place, a mailed notice to the registered voters in the voting area must be sent, informing them of the change, no later than 30 days before the election. The Secretary of State may grant a waiver from this requirement in case of emergency beyond the election officer's control. All advance ballots postmarked on or before election day and received within three days following the election date must be counted. That was a new provision. Advance ballots requested by voters must be mailed by the election officer, and HB 2158 changed the deadline for mailing of applications for advance ballots from the last business day before the election to the Tuesday before the election, to allow more time for the advance ballots to be received, completed, mailed back by the voters. 2. Voting Rights a. Voter Registration In 2011 the Legislature enacted the Kansas Safe and Fair Elections Act, HB 2067, 2011 Session Laws, Ch. 56, which requires voters to produce a photo ID when voting and to produce a document proving their U.S. citizenship when registering to vote for the first time. The photo ID requirement went into effect with the 2012 elections, while the Documentary Proof of Citizenship ("DPOC") requirement became effective on January 1, The provisions of the voter ID law may be found at K.S.A (g)(2), , , and , and the voter registration provisions are codified at K.S.A The voter registration law grandfathers all persons registered on or before January 1, 2013, from having to produce a DPOC document. The DPOC requirement only applies to individuals registering to vote for the first time. The list of documents that meet the DPOC requirement appears at K.S.A (l). For most persons, their birth certificate will be the document used. The other two most commonly-used documents are a U.S. passport and U.S. naturalization certificate. The asserted purpose of the DPOC requirement is to eliminate non-citizen registration and voting. Advocates of the requirement believe that a substantial number of non-citizens are registering and then voting in Kansas elections. As only U.S. citizens may vote, requiring potential voters to prove their citizenship through objective 3

5 means will weed out persons who do not have such documentation available to them. To date, the evidence of the problem of non-citizen voting has largely been anecdotal. As discussed below, litigation in the Kansas state and federal courts now is considering whether there is objective, measurable proof of this phenomenon, to the extent that the DPOC requirement is justified. The DPOC requirement has produced a spate of litigation in the Kansas state and federal courts. The principle challenges have been constitutional (the requirement violates the Fourteenth Amendment Due Process clause) and statutory (the requirement is preempted by federal law). DPOC Litigation. Two federal court cases and one state court case have been brought to challenge the requirement that persons may register to vote only if they produce a document demonstrating their U.S. citizenship. Although the legal theories differ in each case, the argument is that the DPOC requirement is an unnecessary addition to the information provided by a registrant. Further, the opponents of DPOC argue that it has a disproportionately discriminatory impact on those who do not have DPOC documents readily available. State Court Litigation. Belenky v. Kobach, No 2013-CV-1331 (District Court of Shawnee County). This case arose before the Secretary of State promulgated K.A.R in 2015, discussed below in the context of the federal court litigation. The Secretary unilaterally determined that persons using a federally-issued form to register to vote, which did not require the registrant to produce a DPOC document, would only be allowed to vote in federal elections. The Court found that the Secretary had exceeded his powers in making the determination, and granted summary judgment to the plaintiffs, so they would be placed on the voter rolls and allowed to vote in all elections. See 2015 WL (August 21, 2015) and 2016 WL (January ). Federal Court Litigation. Fish v. Kobach, Case No , and Bednasek v. Kobach, Case No , District of Kansas. The DPOC requirement became effective on January 1, The statute provides that persons must provide DPOC to become registered voters, but it does not specify what happens to registrants who fail to provide the documentation. In July, 2015, the Secretary of State promulgated K.A.R , which provides that registrants who fail to provide all necessary information with their application have up to 90 days after filing their initial registration documents to provide the necessary information. In most cases, the additional information is the DPOC (birth certificate, passport, etc.). For the 90-day period, the registrant is placed in a "suspense" status, that is, they are placed on a list of registrants who have not provided all needed 4

6 information, and thus they are not allowed to vote. If the information is provided within the 90 days, the registrant is made an active voter. However, if the information is not provided during the 90-day period, the registration is cancelled. If the person wishes to register thereafter, a new registration process must be initiated. K.A.R became effective on October 4, Each of the 105 county election officers had to create lists of suspended registrations, and all registrants in suspended status on October 4 who failed to provide the mandated information within 90 days had their registrations cancelled. Since the advent of Rule , the suspense and cancellation lists have each had more than 10,000 names on them. The rule has resulted in the cancellation of the registrations of many thousand otherwise eligible voters, due to the failure to provide DPOC. The first lawsuit was filed in October, Now known as Bednasek v. Kobach (Case No ), the plaintiffs at that time were Alder Cromwell and Cody Keener. The suit challenged the constitutionality of the DPOC requirement and K.A.R , claiming that requiring registrants to attest to their citizenship, which has been the norm for many decades, is sufficient and all that can be required. The second lawsuit, Fish v. Kansas, was filed in February, 2016, and it alleges that the DPOC requirement violates, and therefore is preempted by, The National Voter Registration Act, 52 U.S.C , a federal statute that requires all state motor vehicle offices to provide voter registration services that meet the requirements of federal voter registration law. Since the federal voter registration law does not require DPOC, the argument made by the ACLU (which is representing the plaintiffs in the Fish case) is that the Kansas DPOC requirement is preempted by the NVRA. The cases largely proceeded in tandem for discovery purposes, although with the difference in legal arguments the cases present different issues for the Court. Class certification was sought and denied in both cases. Bednasek, 199 F.Supp.3d 1292 (D.Kan. 2016); Fish, 318 F.R.D. 450 (D. Kan. 2016). However, if the relief sought by the plaintiffs is granted, it will deal with most situations in which failure to provide DPOC would result in non-registration, so on a going-forward basis, the federal court's rulings will apply to nearly all Kansans attempting to register to vote. The Court granted a preliminary injunction against enforcement of the DPOC requirement for individuals registering at the DMV, utilizing the federally-mandated NVRA registration procedure. Finding that the Fish plaintiffs had made a strong showing that the DPOC requirement is preempted by the NVRA, the District Court granted a preliminary injunction, which the Tenth Circuit affirmed on appeal. Fish v. Kobach, 189 F.Supp.3d 1107 (D.Kan. 2016), aff'd, 840 F.3d 710 (10th Cir. 2016). The injunction will be in effect until the District Court rules on the merits. 5

7 Cross-motions for summary judgment were filed in both cases. The Court did not grant complete summary judgement for any party, so the basic claims (constitutional claims in Bednasek and NVRA preemption claims in Fish) survived for trial. The cases were tried together before Judge Julie Robinson in March, The parties introduced extensive anecdotal and expert testimony. Anecdotal testimony from the named parties addressed their personal experiences with attempting to register to vote, and the expert testimony largely concerned whether there is in fact a problem with non-citizen registration and voting in Kansas, and the adverse impact of the DPOC requirement on otherwise eligible Kansans being able to register to vote. Post-trial filings were made in April and the parties are now awaiting the Court's ruling. In all probability the Court will rule in the very near future, as the Kansas primary election is scheduled for August 7, 2018, and the Court's decision could have an impact on voter eligibility for that election. Over the course of the litigation there have been discovery disputes and compliance issues that have made public news. This has occurred twice, both times in the Fish case. First, the Secretary was asked to produce documents he had shared with President-elect Trump in late The Secretary refused to do so and was eventually sanctioned by the Court for providing misleading summaries of the contents of those documents. 320 F.R.D. 566 (D.Kan. 2017) and 267 F.Supp.3d 1297 (D.Kan. 2017). The Secretary was also required to sit for a deposition concerning the documents. On April 18, 2018, after the close of the trial on the merits, Secretary Kobach was found in contempt of court for failing to comply with previous court orders in the litigation. In summary, the orders had to do with ensuring that reminders were sent to registrants who had not provided all necessary information to become voters, and updating and revising voter information materials on the Secretary's web site. Judge Robinson found that Secretary Kobach had failed to comply with her orders, and she found him in contempt and ordered the Secretary to pay appropriate attorneys' fees to the ACLU lawyers WL (D.Kan. April 18, 2018). The Secretary's spokesperson has said that he will appeal that decision to the Tenth Circuit. The litigation is far from over. Without a doubt, the party or parties that do not prevail on the merits will appeal to the Tenth Circuit and perhaps beyond. b. Two-Tiered Voting In July, 2016, the Secretary of State promulgated a proposed rule, to be designated K.A.R , that would have created a two-tiered voting system in Kansas. For persons using the Federal Form to register to vote, or the procedure at the Kansas DMV, they would be allowed to vote only in federal elections (President, U.S. Senate, and Congress), while persons using the State Form to register would be 6

8 allowed to vote in all elections. The rationale for the distinction was that under the preliminary injunction issued by the federal court in May, 2016, in Fish v. Kobach, persons using the Federal Form or registering at the DMV did not have to produce documentary proof of citizenship, and thus, in the Secretary's view, were not fully in compliance with the DPOC requirement in K.S.A (l). The rule was approved by an emergency meeting of the State Rules and Regulation Board on July 12, The Commission may approved rules on an emergency basis for up to 120 days, so the rule would have applied to the 2016 primary and general elections, prohibiting voters allowed to vote under the terms of the preliminary injunction entered by the federal court in the Fish litigation (affirmed by the Tenth Circuit in the fall of 2016) from voting in state office elections, although they would be allowed to vote in federal elections. Using representative plaintiffs, the ACLU filed suit in Kansas state court (District Court in Topeka), and obtained a preliminary injunction on July 29, 2016, made permanent in an order issued in November, 2016, prohibiting implementation of the rule. Thus, the two-tiered voting system did not go into effect. In the order making permanent in the injunction against K.A.R , the District Court (Judge Larry Hendricks of the Third District) posed the question raised by the case: "under the law as it stands now, does the Defendant, as Secretary of State, have the power to create a two-tiered system voter registration based upon the method by which a potential voter registers?" Memorandum Decision and Order, Case No CV-550 (District Court of Shawnee County, Division Six, November 15, 2016), at p. 10. After conducting a thorough analysis of a number of statutory arguments raised by the Secretary, the Court concluded that the Secretary did not have the power to create the two-tiered voting system and entered a permanent injunction. The case has been appealed to the Kansas Court of Appeals, which has stayed proceedings pending resolution of the federal court litigation challenging the DPOC requirement. Presumably, if the DPOC requirement is overturned by the federal district court, the Kansas Court of Appeals will either dismiss the appeal or affirm Judge Hendricks' order. 7

9 3. Campaign Finance a. Kansas Campaign Contributions The amounts that individuals can contribute to candidates for Kansas office are subject to state-imposed limits. Although the Legislature in 2017 considered a bill to increase the limits, the bill was not passed. The limits are as follows: Office Statewide (Governor, Lt. Governor, Attorney General, Secretary of State, State Treasurer, and Insurance Commissioner State Senate and State Board of Education State House of Representatives Maximum Contribution $2,000 for Primary Election $2,000 for General Election $1,000 for Primary Election $1,000 for General Election $500 for Primary Election $500 for General Election Persons may contribute to candidates for both primary and general elections. B. Federal Developments 1. Election Law a. Redistricting Every ten years, after the conclusion of the decennial census, the seats in the U.S. House of Representatives reallocated. Set by statute at 435, the number of seats is allocated based on state populations. The states with the greatest population (California, New York, Texas, etc.) are granted a larger number of seats. The determination is made on a mathematical basis, with the exception of the states that have very small population, as they are guaranteed at least one seat. When the reallocation of Congressional seats has been completed (after the next census, the reallocation will be announced in early 2021), the states then draw district lines. This line-drawing process applies not just to Congressional seats, but also to all other state offices that are election on a district basis (state senate and state house of representatives, for example). The long-standing practice of drawing district lines to favor one party over another, or for other improper reasons, is called gerrymandering (named after a governor of Massachusetts, Elbridge Gerry, who presided over one of the first examples of this practice). The courts long ago declared that gerrymandering for racial purposes 8

10 is unconstitutional, and the courts and Congress have come up with tests to determine whether racial gerrymandering is occurring, and methods for providing appropriate relief. On the other hand, another traditional source of gerrymandering problems, that of drawing lines to favor one political party over another, has resulted in Supreme Court opinions that question whether the phenomenon of "partisan" or "political" gerrymandering can be resolved by the courts, or is simply a matter for the states to handle. Two important cases now before the Supreme Court raise the issue of partisan gerrymandering in the drawing of Congressional District lines (Benisek v. Lamone, 266 F.Supp.3d 799 (D. Md. 2017)) and state legislative district lines (Gill v. Whitford, 218 F.Supp.3d 837 (W.D. Wisc. 2016)). In both cases the party in power, controlling both states houses and the Governor's mansion, draw lines that significantly disadvantaged the opposing political party. In Wisconsin it was the Republicans who gerrymandered, while in Maryland it was the Democrats. The principle issue in the two cases is whether the Court will approve a test to determine whether partisan gerrymandering has occurred, and is so, how should it be remedied. The Court has had great difficulty to date deciding on a test, and so it has failed to provide reliable guidance to the lower courts that deal with these disputes. If the Court can forge a majority in favor of a test, it is likely that more gerrymandering cases will be brought and, as a consequence, the instances of gerrymandering may decline. We should have guidance on that issue in the coming weeks. 2. Voting Rights a. Voting Rights Act when I provided an update of election law at the 2016 edition of this CLE, I wrote extensively about the Supreme Court's recent decision in Shelby County v. Holder, 570 U.S. 2 (2013), in which the Court had invalidated a portion of the VRA that determined which areas of the country had to obtain "preclearance" before making any changes in the voting or electoral systems. Many commentators predicted that the end to preclearance would bring an end to litigation under the VRA, which is considered among the most important and most successful pieces of Civil Rights Era legislation. The predictions have not been borne out. Parties are relying on other portions of the VTA, in particular Section 2, to bring cases that challenge discriminatory practices that result in disproportionately adverse effect against minority voters. For example, in Wright v. Sumter County Board of Elections and Registration, Case No. 1:14-CV-42 (M.D.Ga. March17, 2018), the court found an at-large voting plan to be a violation of Section 2 of the Voting Rights Act, 52 U.S.C , which 9

11 prohibits political plans that limit the opportunity of protected members of the electorate to participate in the political process. In that case, after exhaustive statistical analysis, the court concluded that the at-large districts limited the opportunity of minority voters to elect minority candidates. Litigation challenging at-large voting districts is becoming one of the most common uses of the Voting Rights Act today. b. Voter ID Law Litigation There been many challenges to state voter ID (or photo ID) laws brought in the years since 2010, when those laws began to proliferate in the United States (there are no corresponding federal laws requiring such identification for voting, although there are many federal regulations concerning the need to show photo ID to board commercial flights, access federal buildings, etc.). One of the most interesting of the pending cases is Greater Birmingham Ministries v. Merrill, 284 F.Supp.3d 1253 (N.D. Ala. 2018), appeal pending, in which the Northern District of Alabama found that a state photo ID law violated neither the Fourteenth or Fifteenth Amendments, or the Voting Rights Act. The court determined that the photo ID requirement was at most an inconvenience expected to be borne by any voter. In so finding, it did not have to determine whether to undertake a balancing of the state's interest in adopting the law and the burdens imposed on voters -- because of the finding that the photo ID requirement was not a burden on voters. The case is now on appeal to the Eleventh Circuit. 3. Campaign Finance a. Increase in Per Election Contributions The Federal Election Commission announced in January, 2017 that the amount an individual can contribute directly to a candidate campaign committee would be $2,700 per election for the election cycle. The amount of individual contributions is, under 2 U.S.C. Section 441a, indexed for inflation, and the FEC has routinely increased the per election amount in recent cycles. The amount was originally $1,000 per election when campaign finance legislation was originally enacted in the early 1970's, so inflation has had a significant impact on contributions. 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. The amount that Political Action Committees (PACs, not to be confused with SuperPACs, which are not allowed to contribute directly to candidate committees, but may only spend money independent of candidates) may contribute is $5,000 per election. The amount that individuals may contribute to PACs is capped at $5,000 per year. Only individual contributions to candidates committees are indexed for inflation. 10

12 A chart issued by the Federal Election Commission containing all of the relevant contribution limits, is attached to these materials. 11

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