Kansas Lawmakers Advance Prosecutorial Power For Kobach


By John Celock

Kansas lawmakers narrowly gave preliminary passage to legislation that would turn Kansas Secretary of State Kris Kobach (R) into the state’s newest prosecutor.

The House of Representatives voted 63-57 Wednesday to preliminarily pass a bill that would allow the secretary of state and the attorney general to prosecute election law cases, along with strengthening voter fraud laws in the state. Kobach has long sought the prosecutorial powers, while opponents say that the powers should be kept with agencies that are historically prosecutors. While Wednesday’s vote needed a simple majority of the 120 House members present to pass, final passage will require 63 votes in the full 125 member House. Similar legislation was defeated in 2013, when it was tied to a bill related to DNA collection in crimes committed in the state.

“These crimes are more serious and some county district attorneys don’t take them seriously,” Rep. John Rubin (R-Shawnee), who was carrying the bill on the House floor, said during the debate.

Kobach has long made the argument that the state’s district attorneys and county attorneys have not focused on the voter fraud cases that his office passes on to them, saying that is the need to give his office the authority to prosecute the cases. Under the bill, the secretary of state’s office would have independent authority to prosecute, a provision objected to by Democrats, noting that other offices that have prosecutorial powers – including the state insurance commissioner and the state securities commissioner, have to do so in conjunction with the state attorney general’s office.

The House defeated a series of amendments designed to take the prosecutorial powers section out of the bill. The House narrowly defeated by a 60-61 vote an amendment from Rep. Russ Jennings (R-Lakin) that would have given election fraud prosecutorial power to the attorney general but not to the secretary of state.

“If we are going to allow for prosecuting election fraud we should do it as we do in other cases, we should convey to the attorney general, the person elected by the people of this state to be the chief law enforcement office for us,” Jennings said.

The House also defeated an amendment from Rep. Jim Ward (D-Wichita) that would have put the secretary of state’s office into the same boat as the insurance and securities commissioners, where the attorney general or a local district attorney would designate an attorney in the secretary of state’s office to serve as a special prosecutor to assist with prosecuting the case.

“What it does is create a mechanism that we create for the securities and insurance,” Ward said. “This would put the responsibly on the attorney general to have a well trained person who understands the duties of a prosecutor.”

Ward said professional prosecutors are better trained to handle law enforcement and can work with a specialist in the secretary of state’s office, like in the other agencies. He also took a swipe at Kobach.

“We have an excessively partisan secretary of state,” Ward said. “You only need to look to the fact that he has a PAC where he donates to the candidates in the elections that he is overseeing.”

Ward’s amendment was defeated 46-75.

Rubin argued against the Ward amendment saying that Kobach had informed lawmakers that he was opposed to having his attorneys designated as special assistant attorneys general. Rubin also argued against all floor amendments saying that since the bill had already passed the Senate, a House amendment would force the bill into a conference committee, which he said would kill the bill. Several conference committees are currently meeting in the Kansas Legislature to handle a variety of issues.

The House defeated a series of other amendments including one that would have delayed implementation of the secretary of state prosecutorial powers until after the next election for the office in 2018, along with amendments to say that election crimes would be prosecuted for “intentional” violations instead of the “knowingly” language currently in the bill, along with keeping current penalties for the crimes, instead of the proposed upgrades in severity.

Jennings said the 2019 delay was needed since voters in 2014 did not vote in the secretary of state’s election thinking the office would become a prosecutorial agency. He said the delay would allow for voters to keep this in mind when voting for the office, noting that prosecutors have the power to “deprive one of liberty.”

Rubin argued against the provision.

“This is a blatantly political amendment because it delays until after the next election,” Rubin said.

Opponents also said that the provision should not be adopted since no other state in the country has given prosecutorial powers to their secretary of state in election law matters. Under questioning, Rubin said he had not studied if other states provided the power to their secretary of state.

The bill was opposed by the association representing county and district attorneys across the state.

Kobach and Democrats have long argued over the voter fraud issue, with Kobach saying there is an additional need to prosecute and investigates cases, while Democrats and moderate Republicans have said the issue is not as widespread as Kobach says. During the debate, Rep. John Carmichael (D-Wichita), the top Democrat on the Judiciary Committee, said that as he’s talked to local prosecutors they have told him that many of the cases are ones where a person mistakenly voted in two locations and the cases are not prosecuted. Carmichael also read from a list of 18 voter fraud cases that Kobach found from last year, where he said local prosecutors or prosecutors in other states have followed up, either with enforcement or not prosecuting the case.

House Judiciary Committee Vice Chairman Charles Macheers (R-Shawnee) said that he supported the bill in order to focus on the seriousness of voter crime.

“The essence of our government is one man, one vote, or in the modern parlance one person, one vote,” he said. “If any one person votes twice, that nullifies the vote of a citizen, maybe yours.”

Rep. Barbara Ballard (D-Lawrence) said that she does not want to see a case where the secretary of state’s office was competing with other prosecutors for a case or bringing a case where the county prosecutor did not want to make the case. She also said that you cannot give an elected official more power just because the office did not currently have it.

“We are giving too much power because one person wants additional power,” she said. “What happens to a secretary of state who is not an attorney and does not want to have prosecutorial powers?”