Kansas Supreme Court Clears Path for Grand Jury Investigation Against Sec of State Kris Kobach

“Douglas County will have to summon a citizen-initiated grand jury to investigate allegations that Secretary of State Kris Kobach’s office mishandled voter registration information during the 2016 election, the Kansas Supreme Court said,” local news the Lawrence Journal World (LJ World) reported last Friday.

Kansas Secretary of State Kris Kobach, who is now the Republican gubernatorial candidate, was most recently in the news in August after running against the incumbent Governor Jeff Colyer when the two “were virtually tied” and Kobach refused to recuse himself from involvement in the vote counting, though he eventually did due to public pressure.

(TNB readers can read more on that here in Beth’s Notes and my report on Colyer’s concession here, and for Kobach’s involvement in President Trump’s now disbanded “Presidential Advisory Commission on Election Integrity” which was plagued with at least nine lawsuits over allegations such as withholding documents and making false statements, see Tiff’s report here.)

The Case

The LJ World reported in June of this year that in 2016 Steve X. Davis, a Democrat, and resident of Lawrence, the county seat of Douglas County, KS, ran, unsuccessfully, for a seat in Kansas’ state House of Representatives District 44, filed petitions in August 2017 to call for a grand jury investigation into allegations that “Koback’s office had mismanaged the state’s voter registration system and had been ‘grossly neglectful with respect to their election duties’.”

Specifically alleging Kobach or others in his office had engaged in “destroying, obstructing, or failing to deliver online voter registration … possessing falsely made or altered registration books, preventing qualified electors from voting.”

Kansas is one of six states* citizens can petition for a grand jury investigation. According to Ballotpedia, the Kansas law enacted in 1887, which can be found under Kansas Statutes; Chapter 22, Article 30, Code 22-3001, “a grand jury can be summoned in any county by petition. The grand jury must be summoned within 60 days after a petition requesting the panel that has been signed by 100 electors plus 2% of the total number of votes cast for governor in the most recent gubernatorial election in the county.”

After signatures are presented to the county clerk for certification the petition is then presented to the district court who then must order the impanelment of the grand jury requested in the petition.

However, when Davis’s certified petition was submitted to the Douglas County Court, District Judge Peggy Kittle dismissed Davis’s petition under grounds “the allegations were not specific enough.”

The District Court’s ruling was appealed by Davis and on June 8th the Kansas Court of Appeals’ three-judge panel reversed Judge Kittle’s ruling saying Douglas County District Court “must” call a grand jury “to investigate alleged misconduct” against Kobach and his office of Secretary of State.

Davis responded to the decision, saying, “Kansas has more stringent voter registration requirements than any other state in the nation, “ adding, “These voters followed all the rules yet were still turned away at the polls in 2016. I believe Kris Kobach’s office has been aware of the problems for years and neglected to fix them. The grand jury will be able to investigate the situation and determine the facts.”

Kobach denied the allegations in an email, LJ World reported, saying, “Mr. Davis’s petition accuses the agency of criminally handling voter registration, yet he presented no evidence of this” and that “his allegations are patently false” accusing Davis of using the citizen privilege for political gain in Davis’s upcoming election this year for a different district.

But in their ruling the Appellate Court took into consideration Kobach’s concerns, writing, “We are mindful that the mere calling of a grand jury directed at the actions of a public official or a private individual without probable cause to believe a crime has been committed and without the guiding hand of a professional prosecutor can have serious personal and professional consequences,” but that “the Kansas Legislature has determined that it wants to provide for citizen-initiated grand juries and it wants them to have broad powers to investigate possible criminal activity. The wisdom of this law is not a concern of our court.”

It was not the petitioner’s job, they explained, to offer proof of criminal behavior within the petition itself, but only to state what the grand jury to be impaneled is to investigate and to follow the statute rules for their petition to request a grand jury; that it is the job of the grand jury to investigate and determine what, if any, information is true, would warrant a true bill of indictment. Davis, they concluded, followed and met the legal requirement to petition for a summons for a grand jury to investigate his allegations.

In the Appeals Court determination they examined not only historical evidence, but evidence from Kansas’ most recent involvement from 2011-2013 when their legislature actually expanded their citizen -initiated grand jury process giving them even broader powers. A process Kobach himself was involved in from the beginning shortly after taking office as Sec of State in 2011 when he “pushed through legislation requiring new voters in a county to show documentary proof of U.S. citizenship to register to vote and photo ID to cast a ballot at the polls.”

And it was, “ironically,” LJ World says, that “the Douglas County case hinged on a change made in 2013 that Kobach himself testified in favor of during legislative committee hearings” the Appeals Court ultimately, in part, based their decision on.

“Accordingly, based on the plain and unambiguous language of the statute, we must remand the case for the district court to summon a grand jury,” the court concluded. “In doing so, we make no judgment regarding the validity of the claims made by Davis. Whether Davis’ allegations are meritorious is a matter for the citizen-initiated grand jury to investigate and determine,” the ruling said.

Kobach appealed the Kansas Court of Appeals’ ruling to the Kansas Supreme Court and on Friday they cleared the path for Davis’s petitions to stand, when, “in a one-page order signed by Chief Justice Lawton Nuss, the court denied Kobach’s request to review the Kansas Court of Appeal decision in June that had said Lawrence resident Davis had met the legal requirements for circulating petitions to summon a grand jury.”

No other explanation was provided by the Supreme Court, the LJ World reported.

*The other five states citizens can petition for a grand jury investigation are Nevada, North Dakota, New Mexico, Nebraska, and Oklahoma.

On A Side Note (Opinion)

I wouldn’t normally say this, because for me, a lay person, it’s the sort of thing that makes eyes bleed, but if you are so inclined, I recommend reading the Appellate Court’s ruling on this one, even if you just skim it, which I freely admit I did, but the details will jump out at you. In my opinion, the Kansas Supreme Court did not need to do any more than issue a one-page ruling denying Kobach’s request for review after that one.

And after reading it, even just skimming it, in my opinion, it was obvious that District Court Judge Peggy Kittle failed miserably doing her own job.

The legislation Kobach was instrumental in pushing through that is now biting him here, is, in part, being challenged in the federal courts by the ACLU who is arguing the Kansas law conflicts with parts of the National Voter Registration Act and a ruling there is expected soon.

In that case, LJ World said, “Kobach was held in contempt of court by U.S. District Judge Julie Robinson for violating a court order that required his office to inform certain people that they were eligible to cast a ballot.”

About the opinions in this article…

Any opinions expressed in this article are the opinions of the author and do not necessarily reflect the opinions of this website or of the other authors/contributors who write for it.