Kansas Attorney Derek Schmidt appears Dec. 16, 2021, before the Special Committee on Claims Against the State to review a settlement to pay the ACLU and other attorneys $1.9 million. (Screen capture by Kansas Reflector from Legislature video on YouTube)
TOPEKA — Kansas Attorney General Derek Schmidt told a panel of lawmakers Thursday that he and Secretary of State Scott Schwab mutually agreed to extend a costly, futile legal battle over the state’s unconstitutional restriction on voter registrations all the way to the U.S. Supreme Court.
The state is now on the hook for $1.9 million in legal fees owed to the American Civil Liberties Union and a Kansas City, Missouri, law firm after reaching a settlement in September. Only 10% of the cost can be attributed to appeals, an assistant for the attorney general told lawmakers.
Former Secretary of State Kris Kobach convinced lawmakers in 2013 to pass his signature law, which required new voters to present a birth certificate or other proof of citizenship, on the basis of baseless voter fraud claims. The law would do nothing to prevent the extremely rare cases of voter fraud in Kansas, which mostly deal with individuals voting in two locations. Instead, the law blocked more than 35,000 eligible voters from participating in Kansas elections.
Federal district Judge Julie Robinson struck down the law in 2018 following an embarrassing trial for Kobach, who was held in contempt of court and ordered to take remedial law classes. He used state funds to pay those costs.
Kobach, a Republican, lost the governor’s race to Democrat Laura Kelly, who had voted in favor of his law as a state senator, later in 2018. When Schwab took office, he and Schmidt continued to defend the law. After an appellate court upheld Robinson’s ruling, the U.S. Supreme Court declined to consider the case.
The ACLU and other attorneys initially asked for $4 million in compensation for the prolonged litigation. The Attorney General’s Office objected, forcing negotiations that resulted in an agreement to pay $1.4 million to the ACLU and $475,000 to the Dentons law firm.
Senators and representatives on the Committee on Special Claims Against the State expressed frustration with the bill, and being placed in a position where they had to vote to accept the settlement.
“As a Legislature, we’re never hesitant to express our indignation or our displeasure at poor outcomes or decisions that result in some significant expense to Kansas taxpayers, and I think this would also be one of those circumstances,” said Rep. Bradley Ralph, a Dodge City Republican. “So with absolutely no criticism to the current secretary of state or the AG’s office, the decisions that have led to this particular point in time are ones that I think, at least for myself, I would say I’m not appreciative of that.”
However, Ralph said, the attorney general’s office deserves credit for whittling the bill in half. The comment prompted a sharp retort from Rep. Vic Miller, a Topeka Democrat.
“Congratulations on only losing $2 million of taxpayers’ money,” Miller said.
Miller said the Legislature is the real culprit in the case, for choosing to pass the law against the advice of those who said it was unconstitutional.
“We need to take this as a lesson to be learned,” Miller said. “When we are restricting voters rights, in whatever defense of that statute might be, we need to remember we have limitations on restricting voters rights.”
The committee voted to recommend the payment, which still has to go through the typical appropriations process during the upcoming session before it is approved by the full Legislature.
Sen. Alicia Straub, an Ellinwood Republican, said lawmakers on the committee were “put in this position quite unfairly,” and asked what would happen if they refused to make the payment.
Schmidt said the state is under a court order to pay the plaintiffs. If the state failed to do so, he said, the plaintiffs will ask the judge to enforce the order.
“I wouldn’t recommend that we invite that outcome,” Schmidt said.
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