'Making things worse': Kansas lawmakers push back on Kobach's attempts to grab power

One lawmaker said Kobach was “getting his claws” into House bills with the end goal of expanding his influence.

Rep. Rui Xu, a Westwood Democrat, told his colleagues that they needed to take a stand against Kobach’s policy proposals, referencing Kobach’s attempts to implement increased scrutiny of undocumented people through a human smuggling bill.

“We have to stop letting him, who has a history and a career of attacking certain marginalized people, from dragging this body down,” Xu said during a April 6 House debate. “We do good work in this body, but he keeps getting his claws into our bills and making them much worse.”

Kobach, a former secretary of state who lost a 2020 race for U.S. Senate and the 2018 race for governor, replaced Attorney General Derek Schmidt in January.

Kobach was Kansas’s chief elections officer from 2011 until 2019. During that time, he raised his political profile by claiming without evidence that undocumented immigrants were registering to vote and casting illegal ballots. He implemented a citizen law that required residents to prove their citizenship before registering to vote.

After a five-year legal battle on the constitutionality of the law, the Kansas Attorney General’s Office had to pay $1.9 million in fees and expenses to the American Civil Liberties Union and other attorneys when the law was ruled unconstitutional, with no evidence to support his claims of widespread voter fraud. Kobach was ordered by a federal judge to take six hours of remedial law class after the trial.

Kobach has maintained a strong anti-immigration stance and has said he will work to secure the southern borders.

Human smuggling

Kansas lawmakers sent a bill on human smuggling to Gov. Laura Kelly’s office, rejecting proposed changes by Kobach to broaden the scope of the bill and define undocumented people as “aliens.”

Under the legislation, which passed the House 96-26 and the Senate 36-2, human smuggling would be defined as intentionally transporting, harboring, or concealing someone known to be in the U.S. illegally while benefiting from the transaction or receiving anything of value and knowing that the individual being smuggled is likely to be exploited for financial gain. The crime would be considered a severity level 5 felony, with an attached prison sentence of 2.5 to 10.5 years.

The bill also creates a definition for aggravated human smuggling, classifying the crime as a severity level 3 felony, punishable from 4.5 to 20.5 years in prison. Aggravated human smuggling would include threatening the smuggled person with a deadly weapon, harming the person being smuggled and sex trafficking of the smuggled person.

Bill critics say every day actions of undocumented people would be criminalized through the bill, and that Kansas courts would have to decide on whether the person being smuggled is in the country illegally. This decision is usually left to federal immigration courts, and is one that Kansas courts may not be equipped to take on.

Jennifer Roth, an appellate public defender and co-chairwoman of the Kansas State Board of Indigents’ Defense Services Legislative Committee, said immigration law should be left to federal officials in Feb. 15 testimony against the bill.

“Immigration law is a specialized practice area; there are special courts that handle federal immigration matters,” Roth said. “Yet HB 2350 would allow for severe criminal punishment based on the premise that a person should have known that someone was here ‘illegally’ under federal law.”

Roth gave a list of situations in which people may be charged with felonies under the legislation. The list includes workers at a homeless shelter who provide aid to those in need, school bus drivers taking children to school and Uber or Lyft drivers giving someone a ride, among others.

The original bill passed the House 117-4 and was amended in a Senate committee following Kobach’s introduction of an amendment. His changes defined human smuggling as “intentionally moving, concealing, harboring or shielding from detection an alien with knowledge or reckless disregard of the fact that such alien has come to, entered or remains in the United States in violation of the law in exchange for anything of value.”

Under this definition which left a much wider scope for prosecution, landlords, hotel owners and others could theoretically be charged with human smuggling, along with employers giving their employees rides or providing transportation.

Kobach denied that the amendment would change the scope of the bill, but acknowledged that courts could use this sort of argument during a March 15 bill hearing.

“You could make it,” Kobach said. “But there’s a good chance you’d lose that argument in satisfying that element of the crime.”

During the bill hearing, Kobach emphasized the necessity for the use of the word “alien” to mimic federal immigration law.

”I know the term alien has become politically incorrect over the last 10 years or so, and in political discourse people would like to say individual, but in defending this in court, if we use the terms of federal law, we’ll be on much stronger footing,” Kobach said.

The amended bill was rejected in the House on both sides of the aisle during the April 6 bill discussion. Rep John Alcala, a Topeka Democrat, said he felt the word “alien” targeted a specific group of people.

“I don’t know too many extraterrestrials or too many green people. But I know a lot of brown people that I think this bill targets,” Acala said. “If we want to fix this problem, it goes back to the history and the resume of our attorney general. He’s cost this state a lot of money with lawsuits that were never won.”

In a Wednesday interview, Kobach said the Uber scenario was “highly unlikely.” He said he didn’t watch the House debates, but felt the amendment wasn’t a big change.

“It didn’t change what the bill does,” Kobach said. “It didn’t change the scope of it. I think it might have modestly changed what aggravated human smuggling is a tiny, tiny bit, but basically, the bill did the same thing. It was just different wording.”

Following House debate, lawmakers threw out the amendments.

Other influences

Acala was one of several Democratic lawmakers who pointed to the bill as the latest example of Kobach’s attempts to influence the Legislature.

Rep. John Carmichael, a Wichita Democrat, said Kobach’s amendment was an excuse for him to expand his authority.

“This is an opportunity for our present attorney general to commence prosecution,” Carmichael said during the April 6 bill hearing. “That’s what it is about. It’s about giving our present attorney general the power to go on an alien hunt.”

Carmichael mentioned a crime bill pushed by Kobach. The legislation grants the attorney general concurrent authority with a county or district attorney to prosecute any crimes involving criminal conduct occurring in two or more counties.

Current Kansas law limits the attorney general to prosecuting cases in which the offender was an officer or employee of a city or county.

Kobach said this expansion of power was needed because of widespread organized retail crime, in which criminals were stealing shopping carts full of goods from big-box stores in multiple counties.

It is not clear how much Kansas is affected by organized retail crime.

Carmichael referenced the prosecutorial portion of the retail bill — which has since been folded into fentanyl-related legislation — as another example of Kobach trying to expand his authority.

“I predicted the attorney general will be back and he will use this power to broaden his original jurisdiction to prosecute supposed crime despite the wishes of local prosecutors who are elected by the people in their counties,” Carmichael said. “Here’s an example of it coming to fruition.”

The fentanyl legislation, Senate Bill 174, would decriminalize fentanyl testing strips, as well as other drug testing strips and increase criminal penalties for manufacturing and distributing fentanyl and fentanyl-related substances. The Legislature adjourned before passing the package into law, but a vote is expected when lawmakers return later this month.

Another portion of the bill would make fleeing a law enforcement officer a misdemeanor or a felony, depending on what crime the fleeing person has been charged with, among other provisions. If enacted, the wide-ranging legislation gives the attorney general authority to prosecute alleged crimes that occurred in two or more counties.

Rep. Boog Highberger, a Lawrence Democrat, spoke against the bill during the March 29 vote.

“The vast and unprecedented expansion of the attorney general’s criminal prosecution authority contained in this package goes far beyond what is needed to address the problem it is purportedly intending to address and I think it will have negative consequences in the future,” Highberger said.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.