Legislature should repeal the authority of the secretary of state to prosecute criminal cases of voter fraud

The Kansas State Legislature should repeal the authority of the secretary of state to prosecute criminal cases of voter fraud, Kansas Attorney General Derek Schmidt says.

And Schmidt is right, of course.

Schmidt, with the support of Secretary of State-elect Scott Schwab, has announced proposed legislation to repeal the secretary of state’s prosecution authority but leave authority with the attorney general and with local county and district attorneys.

“With the change in leadership in the secretary of state’s office, particularly since the new secretary will not be an attorney, it appears the time is right for a more traditional approach to enforcing the state’s criminal laws against voter fraud,” Schmidt said. “The secretary of state would remain responsible for detecting cases of potential fraud and referring them for criminal investigation and, if appropriate, prosecution by the attorney general or local prosecutors.”

Schmidt said that, unlike in 2015 when the State Legislature enacted the secretary of state’s prosecution authority – when Kris Kobach was the secretary of state - the attorney general’s office now has a Fraud and Abuse Litigation Division, created in 2016, that has capacity to handle the relatively small number of voter fraud prosecutions. 

That same year, the State Legislature enacted a statute declaring as state policy that criminal prosecution authority, other than that exercised by county or district attorneys, should be consolidated with the attorney general.

“It will be more efficient for our professional prosecutors to handle voter fraud cases together with our other fraud and abuse cases rather than for the secretary of state to maintain separate prosecution capacity,” Schmidt said.

Schwab said he supports Schmidt’s recommendation that the authority to prosecute criminal cases be vested with the attorney general, not with the secretary of state.

“Attorney General Schmidt has shared with me his ideas regarding prosecutorial authority,” Schwab said. “I see nothing that causes me concern and I thank him for taking the lead on this issue.”

Schmidt and Schwab said they will work closely together to ensure any voter fraud cases warranting criminal prosecution receive the appropriate attention from the attorney general’s office or from local county and district attorneys. They said they will request introduction of the proposal after the State Legislature convenes in January.

It is debatable whether the State Legislature should have ever granted prosecution authority of voter fraud cases to the secretary of state office. 

This issue is also a reminder of the kind of power that Kobach wielded as secretary of state as he was able to convince the State Legislature to take this action in the first place.

The plan to return prosecution authority in voter fraud cases to the Attorney General office is yet another sign that the state is on its way to returning to normalcy.