By Jonathan Shorman, The Wichita Eagle
TOPEKA - Kris Kobach is the only secretary of state in the country who is also a prosecutor, but none of the candidates running to replace him are interested in continuing that role.
Kobach has produced about a dozen convictions since he gained the power in 2015. Now, all three candidates for secretary say they will allow regular criminal prosecutors to handle voter fraud cases.
Their break with Kobach — a Republican locked in a tight race for governor — on prosecutions represents a rebuke to his time as secretary, which will end in January. And it comes after a federal judge gutted a state law championed by Kobach that requires individuals to prove their citizenship to register to vote.
“I don’t think it needs to be a function in the secretary of state’s office. I voted for it because there was a national push to go that direction, and it didn’t produce the fruit we had hoped,” said Rep. Scott Schwab, the Republican candidate for secretary.
Schwab, Democrat Brian McClendon and Libertarian Rob Hodgkinson all spoke about the secretary’s prosecution power during a debate this last sponsored by KTWU in Topeka.
McClendon, a former Google and Uber executive, said the secretary of state’s office is not the right place for prosecutions. Like Schwab, he said county attorneys and the attorney general can handle cases.
“I also believe the way it has been handled has been aiming at the wrong place. The people that were convicted were not people with ill intent,” McClendon said, adding that as far as he could tell the people who have been convicted by Kobach made mistakes.
Neither Schwab nor McClendon are attorneys, and both expressed reservations about making legal judgments.
Schwab said he is concerned that he could face a zealot attorney urging him to prosecute but without legal training, he would be unable to properly assess the evidence and make a decision. McClendon said the state needs “somebody with the legal judgment in a real law office” to make prosecution decisions.
Hodgkinson said he is “not a fan” of prosecutions coming from the secretary of state and said he will not prosecute if elected.
“Our county attorneys can make those decisions easier than somebody sitting up here in Topeka,” Hodgkinson said.
Asked about the candidates’ comments, Kobach said he would have to see exactly what was said.
“I haven’t heard Scott Schwab say anything that concerns me on the topic,” Kobach said.
Kobach said he has “no doubt” McClendon would decline to prosecute voter fraud.
“In the several years since my office had that prosecuting authority, we have convicted, I believe, 13 people so far, or at least 12 and maybe there’s one in the pipeline for conviction,” Kobach said.
When lawmakers approved prosecution power in 2015, Kobach noted a lack of prosecutions of voter fraud and suggested that local prosecutors are more focused on going after violent crimes, drug crimes and property crimes.
Three years later, Kobach has secured about a dozen convictions. But there is little evidence of widespread voter fraud, either in Kansas or across the country.
Rep. John Carmichael, D-Wichita, said he would re-introduce legislation next year to end the secretary of state’s prosecution power.
“And that has always been my biggest concern: allowing people like Kris Kobach to use criminal prosecutions to advance their political future and to make a name for themselves. And a responsible, professional prosecutor does not do that and we need to change the law back to the way it was,” Carmichael said.
The ACLU of Kansas, which has sparred repeatedly with Kobach over his voter policies, said it’s glad all of the candidates plan to allow regular prosecutors to handle voter fraud cases.
“We hope that, whichever candidate is elected, the new secretary of state urges the legislature to actually repeal this unnecessary and vote suppressing law,” ACLU of Kansas director Micah Kubic said.
Kobach has defended claims of significant voter fraud throughout his political career. He supported unsubstantiated claims by President Donald Trump that millions of illegal votes cost him the popular vote in 2016.
In 2017, Trump named Kobach as vice chair of his commission on election integrity. Trump disbanded the panel early this year, however, after backlash from states over a massive data request from Kobach, who had requested personal information on every voter in the country.
A federal judge has also overturned a Kansas law sought by Kobach that requires residents to show proof of citizenship – like a passport or birth certificate – in order to register to vote. Kansas is appealing, however.
In a June decision, Judge Julie Robinson said of the tens of thousands of people whose voter registrations have been canceled or suspended because of a lack of proof of citizenship, less than 1 percent have been confirmed to be non-citizens.