Few Kansas politicians—or any politicians, for that matter—make headlines as often as former Kansas Secretary of State and 2018 gubernatorial candidate, Kris Kobach. His 2020 campaign for Senator Pat Roberts’ seat continues to generate news coverage across the state, and a development in a case involving his tenure as Secretary of State recently rose to the forefront of election-related news from Kansas.
At issue is the controversial Interstate Voter Registration Crosscheck Program, which is run by the Kansas Secretary of State and compares voter registration lists among participating states to check for duplicates. Crosscheck was established in 2005 when Kansas—along with three other states—agreed to compare voter registration records with each other annually to identify duplicate voter registrations and potential double votes. The program had grown to fourteen participating states when Kobach took office in 2011, and he made Crosscheck’s continued growth one of his highest priorities as Secretary of State. By 2017, thirty states were participating in Crosscheck and more than one-hundred million voter records were added to the database.
However, a growing chorus of concerns has surrounded Crosscheck in recent years. First, the security risks and data reliability of the program have been called into question. Indeed, a recent statistical analysis of Crosscheck by researchers at Stanford, Harvard, University of Pennsylvania, and Microsoft found that the program “would eliminate about 200 registrations used to cast legitimate votes for every one registration used to cast a double vote.” Critics have raised further questions about the security measures of the program and argue that the database is vulnerable to digital attacks. These accuracy and security concerns led eight states—Florida, Alaska, Kentucky, Washington, Oregon, New York, Pennsylvania, and Massachusetts—to leave the program in recent years.
Second, the Crosscheck program faces a legal challenge in federal court by the American Civil Liberties Union of Kansas (ACLU) in Moore v. Kobach. Filed in June 2018, the lawsuit makes two allegations against Kobach. In Count One, the lawsuit alleges that Kobach—acting in his official capacity—violated the plaintiffs’ Fourteenth Amendment right to informational privacy by (1) failing to adopt adequate safeguards for Crosscheck, and (2) disclosing part of the plaintiffs’ Social Security numbers and other personal information. This suit presents two vexing questions of constitutional law: Does the Constitution recognize a right to informational privacy? And, if so, does that right prohibit public disclosure of purportedly private voter information? The Supreme Court has not decided either of these questions, and the Crosscheck program could potentially be a vehicle for more clarity on these constitutional questions.
In Count Two, the lawsuit alleges that Kobach—acting in his individual capacity—violated the Kansas Public Records Act during his tenure as Secretary of State. The Kansas Public Records Act prohibits dissemination of social security numbers on documents that contain other personal information, such as names and addresses. The lawsuit contends that Crosscheck violates this Act because the program collects first, middle, and last name; date of birth; Social Security number; voter status; voter identification number; mailing address; date of registration; and whether the voter cast a ballot in the most recent election. The program then sends a list of potential double voters to relevant states that includes only the voters’ names and dates of birth. However, states may get other voter data—including a partial Social Security number—upon request. This provision raises significant legal questions as to Crosscheck’s compliance with the Kansas Public Records Act.
The lawsuit asks for an injunction to halt the transmission of personal voter data until “industry standard practices and procedures” are implemented, and it also seeks unspecified civil penalties against Kobach. The district court held on February 1, 2019, that the plaintiffs stated a plausible claim against Kobach. The lawsuit moved forward on September 5, 2019, when the court denied Kobach’s motion for reconsideration, stating that a motion to reconsider “is no place to revisit issues already decided.”
Stay tuned for more developments – this case could go all the way to the Supreme Court!