On Wednesday, the Tenth Circuit of the U.S. Court of Appeals issued a truly outrageous opinion. The court struck down Kansas’s 2011 law requiring voters to provide proof of citizenship when they register. As Kansas Secretary of State at the time, I was the author of that law—which passed with overwhelming bipartisan majorities in the Kansas Legislature. Not only did virtually every Republican vote in favor, but also more than two-thirds of Democrats voted for the law.
The Tenth Circuit’s ruling was issued by only two judges, since one of the three judges on the judicial panel passed away before he could take part in the decision. And the ruling was no surprise, given who the two remaining judges were. Indeed, it was a textbook example of judicial activism....
The Court seemed oblivious to the fact that it is very difficult to determine whether a person on the voter rolls is an alien or a citizen. One needs some sort of external information—like the person applying for a driver’s license only issued to aliens, or the person declining jury duty because he’s an alien—before one can conclude that he’s not a citizen. Nevertheless, the State of Kansas did find over a hundred aliens who had registered to vote; and an expert witness used statistical sampling to conclude that the true number was likely in the thousands.
But that wasn’t enough for the Tenth Circuit. The judges concluded that the minimal burden of finding one’s birth certificate outweighed the benefit of stopping fraudulent voting by these aliens....
The Tenth Circuit opinion is the epitomy of judicial activism, setting aside the plain meaning of the law and replacing it with a subjective, policy-based balancing test. It reads more like a legislative report than a judicial opinion....
