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The Kansas Attorney General is, essentially, the state’s highest lawyer or legal counsel. The office of the attorney general offers legal services to state agencies and boards, which can include bringing or defending the state in lawsuits or providing legal advice, and also brings its own litigation. The Attorney General Opinions provide guidance on the law, and the office also handles complaints and conducts investigations in a variety of areas, including consumer fraud protection or other violations by private businesses, racial profiling by law enforcement.

As with every elected official, the attorney general makes choices in the matters they prioritize and how they exercise the power of the office. Those choices, the details of how they are implemented, and where an attorney general focuses his energy and resources can impact hundreds or thousands of Kansans. The AG can lead an office that works powerfully and with integrity to uphold and protect Kansans’ civil rights and civil liberties across the state—or can undermine and erode them.

Kris Kobach’s latest career move found him elected to the office of Kansas’s Attorney General in the 2022 election, and he took the post in January 2023. Here’s what to know about how Kobach’s implementing his power in office so far:

Attacking Voting Rights

The constitutional right to vote is at the heart of our democracy and system of governance. The ability to cast a vote is the vehicle through which a citizen has a voice in their community, and every elected official should work to strengthen and protect Kansas voters’ right. Attorney generals are tasked with defending state laws and prosecuting others, but like all other prosecutors, have a great deal of discretion when it comes to deciding what charges are brought in case, who is charged in the first place, and how vehemently to pursue a case.

Similar to his approach as former Secretary of State, Kobach has demonstrated an eagerness to prosecute and bludgeon ordinary Kansans with the power of his office, even where current Secretary of State Scott Schwab and county prosecutors may be unwilling to. Kobach has also parroted problematic myths about voter fraud, railed against drop boxes and constantly promoted distrust in elections security, in both cases contradicting and undermining Scott Schwab, who remains the state’s top elections officer at the moment. As secretary of state from 2011 to 2019, Kris Kobach attacked Kansas voters’ access numerous times – and also lost numerous times. In Moore v. Schwab (previously Kobach), Brown v. Kobach, Fish v. Kobach, and Belenky v. Kobach, he lost in trying to defend his deep disdain for the constitutional right to vote and efforts to carry it out—but made clear his position on democracy.

Most recently, Kobach asked the state’s Supreme Court to overturn a lower court’s decision that declared voting a fundamental constitutional right. His request came in League of Women Voters of Kansas, Loud Light, et al. v. Schwab and Kobach, a lawsuit challenging two state laws passed in 2021, K.S.A. 25-1124(h) imposing a signature match requirement and K.S.A. 26-2437(c) limiting a person from collecting and delivering more than ten advance voting ballots on behalf of others. Essentially, Kobach is requesting the Court to allow the state unchecked ability to burden Kansans’ right to vote. As the ACLU of Kansas argued in its amicus brief in the case, strict scrutiny is crucial in protecting us in areas where government infringes on our core civil liberties—such as our access to the fundamental institution of democracy.

It is truly troubling to see one of the state’s highest law enforcement officers use his position to directly attack democracy and Kansans’ right to vote.

Attacking Reproductive Rights

Bodily autonomy and reproductive freedom are one of our most essential—and personal—constitutional liberties. Whether or not to have a child is an extremely personal health care decision between a pregnant person, their family, and their medical provider, and abortion is one of the safest medical procedures performed at a 99% success rate, according to the Centers for Disease Control.

Attorney General Kobach kicked off his tenure with attacks on reproductive rights. He falsely opined in a letter characterizing mifepristone as dangerous to justify his politicized move threatening Walgreens and CVS with criminal prosecution to stop distributing the pill in Kansas. Kobach also joined an amicus brief with 20 other attorneys general calling on the Supreme Court to effectively ban medication abortion, even though abortion is still legal in Kansas, thanks to a landslide victory on August 2, 2022.

In reality, mifepristone, or the pill used to end a pregnancy, is safe, effective, and has been used by more than 5 million people in the U.S. since the FDA approved it decades ago. There is overwhelming evidence that medication abortion is safe and effective for virtually anyone who wants to end an early pregnancy, with a safety record of over 99%. Mifeprestone is also critical for miscarriage care and was used in about 68% of abortions in Kansas in 2021.

Attacking Transgender Children and Kansans

Every elected official—especially the attorney general—should work to defend the community against discrimination rather than actively attacking them. LGBTQ+ Kansans especially face discrimination because of their LGBTQ+ identities at their work, in their homes, and in the public sphere—and there are few laws in place to protect them in the state. More than ever, transgender rights especially have been the target of extreme politicians, including Mr. Kobach.

Early in his tenure as attorney general, Kobach demonized and marginalized transgender children in Kansas under the guise of fairness in girls’ sports by leading a letter to the U.S. Department of Education criticizing the department’s proposed rule requiring schools to allow transgender athletes to participate in girls and women’s sports. Similar to other elected officials, Kobach has weaponized women’s rights in order to target transgender people, rather than meaningfully working for gender equality. Kobach also blatantly undermined our most basic bodily autonomy and right to live authentically when asked about SB 180, a broad but vague anti-trans Kansas law impacting nearly every facet of life, stating, “I think the general presumption would be, well, under Kansas law, when the state speaks, male means male, female means female biologically, not according to the choice of the individual.”

In June of 2023, Kobach began a more direct attack on LGBTQ+ Kansans’ well-established rights, by first requesting permission to no longer follow the 2019 Foster v. Andersen consent decree requiring the state to issue corrected birth certificates with accurate gender markers to transgender Kansans. A couple of weeks later, Kobach filed a lawsuit against Gov. Laura Kelly and the Kansas Department of Revenue asking the court to prohibit gender marker changes on driver’s licenses. The ACLU of Kansas, the ACLU, and Stinson LLP are currently representing five transgender Kansans who filed a motion to intervene in the case.

Having an accurate gender marker on one’s documentation is a matter of bodily autonomy, privacy, and equality as guaranteed under the Kansas Constitution – but it’s also a significant and very real life matter of safety. When transgender people do not have ID reflecting their true gender identity, they are outed as transgender against their will simply when showing their license. This places them at risk of harassment, discrimination, and violence.

Last fall, Kobach joined an amicus brief in a Maryland case, Mahmoud v. McKnight, in which a group of parents seek the ability to essentially veto a public school’s curriculum because they disagree with the content of certain books featuring diverse characters, including LGBTQ+ characters. While the parents claim that the elimination of the ability to opt students out of classes when the books were used violated their First Amendment right of free religious exercise, simply being exposed to a book does not coerce the parents into refraining from raising their children according to their religious values or penalize their efforts to direct their children’s religious upbringing. Courts have consistently held that a school’s refusal to excuse students from mandatory instruction does not sufficiently burden parents’ religious exercise – they have chosen to send their children to public school, and they remain free to discuss the material and subject matter with their children at home. 

Attacking Immigrants

As the state’s highest ranking attorney, the attorney general decides when to get involved in national litigation. One of Kobach’s first moves in office was to tag along with 18 other states in a Texas-led lawsuit against the Biden administration for a program that would allow 30,000 people per month to enter the U.S. from Cuba, Haiti, Nicaragua and Venezuela if they apply from their home countries, pass a background check and prove they have someone in the U.S. to financially support them. Kobach parroted his usual fear-based, decades-old talking points about immigrants.

The anti-immigration rhetoric echoes the same falsehoods about fentanyl’s origins from Kobach’s campaign, weaponizes public concerns about a real and complex public health issue. By scapegoating immigrants, Kobach ignores the harm reduction policies supported by evidence and advocates.

Kobach also pushed a bill in the 2023 legislative session to prevent foreign interests from buying up Kansas farm land, but written in such a broad way that its impact on legal residents’ ability to buy a house was unclear. It was a xenophobic oversight that equated foreign governments with the entire Chinese diaspora – fortunately, it didn’t move meaningfully in the 2023 legislative session. In Florida, a group of Chinese citizens recently filed a lawsuit against a bill taking effect in July that will similarly restrict entire groups of people from purchasing homes in the state.

Holding the AG accountable

What can a concerned Kansan do? If you found this information helpful, plug into the Civil Liberties Beehive to learn how we can change the landscape of Kansas to ensure our officials are accountable and respect our fundamental rights and values.

Date

Wednesday, July 26, 2023 - 11:30am

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