How Kansas voting laws came to be

By Barbara Shelly


This is part one of an eight-part series about elections and voting in Kansas.

Right after the Civil War, soldiers became Kansas’ first group of absentee voters. An 1868 state law permitted men away from home on volunteer military service to vote at their encampments and have the ballots transported to the secretary of state. 

Railroad workers were next. A 1902 state law freed them to vote in any precinct in the state and mail the ballots to the clerk in their home county.

From those limited beginnings, Kansas experienced a century-long arc during which voting steadily became easier and more accessible to greater numbers of people.

“That’s something that really stretches across the entire history of Kansas,” says Micah Kubic, executive director of the American Civil Liberties Union of Kansas. “There was a desire to make this a place where everyone mattered, where everyone counted, where folks were part of the community. And I think that shows up in these various voting laws that were adopted along the way.”

Trusting the vote series icon

Kansas recognized the right of women to vote in 1912, eight years before that right was enshrined in the 19th Amendment to the U.S. Constitution. After the 15th Amendment was ratified in 1870, Black men in Kansas generally did not endure the discriminatory practices that became common in the South. For more than 50 years after the start of the Civil War, the state allowed voting by residents who weren’t U.S. citizens, as long as they stated they intended to become naturalized.

Along with making voting legal for more people, Kansas lawmakers showed an inclination to make it easier as well. 

In 1953, they passed a law allowing voters who were disabled or too ill to make it to a polling place to put their ballots in the mail. Widespread absentee voting – excuses required  –  became legal in 1967.

In 1995, with a one-word statutory change, legislators ushered in the universal early voting and mail-in voting practices that a generation of Kansans has grown to expect and appreciate.

“What they did was, they replaced the word ‘absentee’ in Kansas election law with the word ‘advance,’” says Connie Schmidt, who served as Johnson County’s election commissioner from 1995 to 2004 and again for most of 2020. “It meant voters could do the same things they were doing by voting absentee, except they didn’t have to have a reason.”

Kansas wasn’t the first state to create a window of time before Election Day when people could vote early at designated locations or drop completed ballots into the mail or special drop boxes. Texas had initiated early, in-person voting in the 1980s, and California and some other Western states were accepting early mail-in ballots.

But Kansas’ embrace of unquestioned advance voting was revolutionary for a cautious Midwestern state. Neighboring Missouri only this year authorized no-excuse in-person advance voting, and only for the two weeks leading to Election Day.

Kansas’ adoption of advance voting was motivated largely by a debacle in Johnson County during the 1992 presidential election. Long lines formed as people sought to navigate clunky, outdated electronic voting machines. News outlets aired photos of voters still standing in line after the polls closed and darkness closed in.

That experience is perhaps why Kansas’ largest county took to advance voting so enthusiastically, Schmidt says. 

“In the 1996 election, I remember so vividly, the voters were so grateful,” she says. “If they went to vote early and there was a long line, they could come back the next day. On Election Day, you can’t do that.”

News clipping of 1992 voting line

A newspaper clipping provided by the Johnson County Election Office shows the long lines to vote in the 1992 presidential election, which hastened Kansas’ adoption of advance voting.

News clipping courtesy of the Johnson County Election Office.

News clipping courtesy of the Johnson County Election Office.

News clipping courtesy of the Johnson County Election Office.

For 15 years or so after advance voting became the norm in Kansas, the Legislature continued to tweak election laws mostly in the direction of openness. 

But in 2010, the long arc of expanded voter rights in Kansas was interrupted. A Republican candidate for secretary of state, lawyer Kris Kobach, made claims of voter fraud the centerpiece of his campaign. He warned that voting by noncitizens was at epidemic levels in Kansas and nationwide.

Kobach, who currently is the Republican nominee for Kansas attorney general, never proved his claims. (During his tenure as secretary of state, Kobach obtained nine voter fraud convictions.) But soon after he won election to the secretary of state’s office, he began pushing the Legislature to make voting more difficult.

He shepherded a government-issued photo ID requirement for voting at the polls or by mail. (Polls show that bipartisan majorities support requiring Americans to show photo IDs to vote.) 

In a move that would wreak havoc and later be deemed unconstitutional by a judge, Kobach engineered a Kansas law requiring that new voters provide proof of U.S. citizenship in order to register. The mandate resulted in hundreds of voters being suspended from Kansas voter rolls after they had registered properly according to federal law at motor vehicle offices.

“Kansas went from being a model on how you can encourage a robust democracy and robust civic dialogue to instead being the front lines of the voting wars,” says Kubic, whose organization helped challenge the law. 

Still, Kobach was re-elected to a second term. In 2018, he lost a race for governor to Democrat Laura Kelly. (He conceded gracefully.) But unfounded voter fraud allegations got national traction when President Donald Trump claimed he was robbed of re-election in 2020.

“That’s what we call the big lie now,” Kubic says. “This thing about noncitizens voting was the big lie before the big lie. And it’s really part and parcel of the same thing, which is an attack on democracy itself.”

In 2021, the Kansas Legislature passed a bill that, among other things, makes it harder for groups to encourage voters to apply for advance ballots, and for individuals to deliver a ballot to an election office on behalf of someone else. The Legislature overrode a veto by Kelly to enact the bill into law.

Partly because of that law, the Voting Rights Lab, a group that advocates for expanded voting access, scored Kansas as one one of nine states last year that restricted voting rights.

Not all groups are dismayed by recent changes. The right-leaning Heritage Foundation ranked Kansas 13th among the states on its “election integrity scorecard.” 

But even with talk of election fraud still roiling Republican circles, few leaders in Kansas have been willing to vocally disparage the state’s election process or consider severe measures to roll back the popular advance voting measures.

Ballot drop boxes, like this one being used by Doug Weller of Lawrence in July 2020, face increased scrutiny following the 2020 presidential election. (Photo by Jeff Tuttle)

Scott Schwab, the Republican secretary of state, has repeatedly said that Kansas elections are secure. In an August primary bid to keep his office, he defeated Mike Brown, who made an advertisement that replayed election conspiracy theories from a Kansas House hearing and ran on a platform that included removing ballot drop boxes and beefing up election crime prosecutions.

Derek Schmidt, the GOP attorney general who is seeking the governor’s office, told an audience this spring that he thinks Kansas elections are “solid” and don’t have “the institutional problems that I think other states do.”

And while the Legislature has passed some barriers to voting in the last few years, it has also taken steps to expand access. Thanks to a 2018 law, voters can drop off an advance ballot at an election location up until 7 p.m. on Election Day and expect it to be counted. Ballots can be mailed on Election Day and be counted if they are received within a three-day grace period.

State Sen. Richard Hilderbrand, a Baxter Springs Republican, is vice chairman of the Federal and State Affairs Committee, which handles election-related legislation. In recent years he has sponsored legislation to require ballot drop boxes to be located in secure buildings, and to require mail-in ballots to be received no later than Election Day. Both those measures, and other restrictions, have stalled in the legislative process.

“There are bad actors out there,” Hilderbrand says. “I think, as a legislator, if we see a hole with security in our elections, we should do everything we can to ensure that we get a just and fair election and that every vote is counted.”

But a fellow Republican legislator, Rep. Jesse Borjon of Topeka, has used his post as vice chairman of the House Elections Committee to fend off attempts to impose more restrictions on advance voting. 

“Kansas has very secure elections,” says Borjon, who worked in the secretary of state’s office during GOP Secretary of State Ron Thornburgh’s term. “We have a reputation of being a leader. Folks look to Kansas when they’re wanting to structure their elections. I’m hesitant to put more restrictions in place.”

If history is a guide, Kansas leans in the direction of expanding democracy rather than restricting it.

That 1860s law to grant absentee voting privileges to soldiers? Many states passed “soldier voter” laws during and after the Civil War. But according to David A. Collins, a lawyer who researched the topic extensively for a doctoral thesis, most states repealed the laws within a few years.

Not Kansas. Its law remained on the books until the 1940s, when Congress passed legislation guaranteeing service members the right to cast absentee ballots in federal elections.

When it comes to voting access, Kansas’ inclination has been to give, not take.

This is part one of an eight-part series about elections and voting in Kansas.

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This article was republished here with the permission of: KLC Journal