Threatening to upend a tradition of equality that dates back to the founding of the country, Republican political leaders in Kansas and Arizona are discussing plans to establish a multi-tier voting rights system for their states if they lose a voting rights case currently in federal court. The net effect would be to bar some U.S. citizens—mostly immigrants, racial minorities, the elderly, and the poor—from voting in state and local elections even as they cast ballots in federal contests.

For the past several years, in response to ongoing demographic changes that are making the U.S. increasingly non-white and non-Anglo-Saxon, Republican-dominated state legislatures have passed a variety of laws making it harder to register or to vote. But this summer, the U.S. Supreme Court struck down an Arizona law requiring voters to provide proof of citizenship when registering because the national “motor voter” registration form demands only a signed oath of citizenship.

The Court held that states cannot increase the federal voter registration requirements on the motor voter form, but they may ask the U.S. Election Assistance Commission (EAC) to add requirements to it. Rebuffed by the EAC, Kansas and Arizona filed a court case to bend the EAC to their will, but in the likely event they fail, the tiered voting system is a backup plan.

According to a Legislative Research report requested by Kansas State Representative Jim Ward (D), Kansas Secretary of State Kris Kobach’s plan would create three classes of registered voters:

• Voters who provide state-required citizenship documents could vote in all federal, state and local elections.

• Voters who use the federal motor voter form and don’t provide citizenship documents could vote only in federal elections for president, vice president and Congress.

• Voters who use a Kansas form but don’t provide citizenship documents would be suspended and barred from voting in any election.

Already in Kansas, more than 18,000 voters have been suspended under the citizenship requirement, left in legal limbo and unsure whether they will be able to vote at all in the future.

Kobach argues that “the federal government doesn’t have the authority to tell Kansas what to do in Kansas elections,” likely because the Constitution allows state legislatures to determine “the Times, Places and Manner of holding Elections for Senators and Representatives.” Thus, Kobach argues, as long as a state respects federal voting rights when it comes to federal elections, it may have a more restrictive system of voting rights for state elections.

But creating multi-tiered voting rights is tantamount to creating multiple levels of citizenship, with some citizens able to vote in all elections and others restricted to federal races, which flies in the face of the egalitarian foundations of American constitutionalism, going all the way back to the statement in the Declaration of Independence that “All Men are created equal.” Although racial minorities and women were long explicitly denied the right to vote, the U.S. has always espoused the ideal of equality of citizenship, that one person’s right to vote was equal to any other person’s.

Mindful of these issues, the American Civil Liberties Union has notified Kansas that it will sue by mid-November if the state doesn’t stop suspending voters for not filing citizenship papers, saying the state has erected “unnecessary bureaucratic hurdles (that) have deprived thousands of Kansans of their right to register to vote.” Dale Ho, director of the ACLU voting rights project, argues that two-tier voting systems create “separate and unequal classes of voters, and there’s no rational justification for that.”

-Matt Bewig

To Learn More:

Kansas Sec. of State Kris Kobach Has New Plan to Keep 17,500+ Legal Voters From Voting (by Brad Friedman, Bradblog)

Kris Kobach Laying Groundwork for Two-Tier Voting System in Kansas (by Dion Lefler, Wichita Eagle)

2 States Plan 2-Tier System for Balloting (by Fernanda Santos and John Eligon, New York Times)

Republicans Block Effort to Restore Voting Rights to 15,000+ Perfectly Legal Voters in Kansas (by Brad Friedman, Bradblog)