Friday, January 27, 2012


Let's be clear, voting is a fundamental right. The Legal Information Institute,, provides this discussion of what the term "fundamental right" entails:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process. Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional. Examples of fundamental rights not specifically listed in the Constitution include the right to marry and the right to privacy, which includes a right to contraception and the right to interstate travel.

Definition from Nolo’s Plain-English Law Dictionary

In constitutional law, certain rights protected by the due process or equal protection clause that cannot be regulated unless the regulating law passes a rigorous set of criteria (strict scrutiny). Fundamental rights, as defined by the Supreme Court, include various rights of privacy (such as marriage and contraception), the right to interstate travel, and the right to vote. [Definition provided by Nolo’s Plain-English Law Dictionary.]

Kansas Secretary of State Kris Kobach waged a campaign premised on the need to curtail voter fraud.  His campaign represented the height of intellectual fraud as he sold a bogus argument to a willing Republican electorate.  I call it intellectual fraud, which defines as that which "signifies falsification of a position taken or implied by an author or speaker, within a book, controversy or debate, or an idea deceptively presented to hide known logical weaknesses."  See,

Kris Kobach falsified the position that there was widespread voter fraud in Kansas in his 2010 with Secretary of State Chris Biggs.  Kobach deceptively presented his idea which he knew, or should have known, had logical weaknesses.  But Kobach's intellectual fraud did not stop with his false campaign against Biggs.  And yes, I said false campaign because, as cited by the Osawatomie Journal this past Wednesday, the New York Times reported that "...Kansas had only one prosecution for voter fraud in the last six years.  But because of that vast threat to Kansas democracy, an estimated 620,000 Kansas residents who lack government ID now stand to lose their right to vote." 

Kobach's campaign said the photo identification was needed to assure the fairness of our elections.  Denying 600,000 Kansans the right to vote is fair?  I think not.  Now the logical weaknesses come home to roost.  If you are one of the 600,000 who live in either Miami County or Linn County   you cannot simply go to the office of the County Clerk and get your free state issued photo identification.  You have to go to Olathe, Johnson County, Kansas. 

Think about that, you don't have a driver's license, don't need a driver's license, don't want a driver's license, but in order to vote you have to go north a county or two to get a free state issued photo identification card.

That card isn't going to be free if you need to present a certified copy of your birth certificate, which you do not have, to get the state issued photo identification card.  That is why Kobach's law is an end run around the 24th Amendment which banned poll taxes. 

Now Kobach is getting all huffy blaming State Senator Kelly Kutala [D - Kansas City] for his failure, as Secretary of State, to shepherd his bills through the Kansas Legislature.  There is another problem with the state issued photo identification card.  The story is fully reported by the Topeka Capitol Journal online edition @ 

The article says that "workers in the Bureau of Vital Statistics, overseen by KDHE, were under the impression that they were to continue charging for all birth certificates until 2013."  Kobach thought they were going to be "free" this year.  Kobach didn't exercise due diligence and follow up on his own legislation.  This is what happens when the Secretary of State is more interested in political fanfare than the orderly administration of his office.  And didn't Chris Biggs warn us about this?

More logical weaknesses in Kobach's photo identification come from what you'd expect the Ivy League educated Law Professor to understand.  Either he doesn't or he doesn't care.  When a state is going to regulate a fundamental right it must do so in the least restrictive manner possible, it must do so only when there is a compelling state interest so to do, it must narrowly tailor its statute to achieve compliance with that compelling state interest.  Kobach hasn't done any of this.

There is no voter fraud of statistically significance in Kansas. As the New York Times reported in the previous six years there has been only one prosecution.  Since Kobach took office he found no widespread voter irregularity.  At one point Kobach said there were 67 cases, then it dropped to 41 cases, and no matter how few instances he can cite there have been zero prosecutions since he took office.  Had Kobach stumbled onto even a small cluster voter fraud cases, he would be strutting around Kansas like a banty rooster.  He didn't, he ain't.
If there is no voter fraud, there is no compelling state interest.  If there is no compelling state interest then this statute needs to be struck down in federal court as an unlawful interference with the right to vote.

Kobach's statute is not providing the least restrictive means nor is it narrowly tailored to achieve the nonexistent compelling state interest.  Kobach's statute requires the citizen to bear the expense of obtaining a certified copy of his or her birth certificate before getting the "free" photo identification card.  Kobach's statute requires citizens to travel out of county to find a state office capable of issuing the "free" photo identification card. 

The law, if it were needed - and it is not- could have made it easier on the citizen to register to vote.  This is why, if you don't have your birth certificate you can go online and get one.  That costs between $20 and $30.  The cost aside for a moment, what happens when you ask the internet site for a birth certificate?  That web site verifies that you are you by having you answer a series of question to which only you will know the answers.  You answer those questions correctly and you pay and you get the certified copy of the birth certificate shipped by USPS, or UPS, or FedEx directly to your door. 

So why go through the middleman?  Isn't the least restrictive means to give all the County Clerks and DMV offices access to that data base.  That way when a citizen shows up at the DMV, the County Courthouse, or its Annex the county or state employee can log on and verify, with the same degree of certitude that gets a person a birth certificate from a web site, that the citizen is who the citizen says they are.  And doesn't it make sense in many of Kansas' rural counties to let local officials look across the counter and see their neighbors, and knowing that their neighbors are who they say they are expedite this process.  And yes, the State of Kansas should bear this cost to correct Kobach's problem which doesn't exist. 

If there was an issue with voter fraud in Kansas, and there is not, Kobach purports himself to be a man smart enough and educated sufficiently to craft legislation that is more Constitutionally compatible.  His failure so to do makes me think his intellectual fraud runs deep.

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