TOPEKA — The Kansas Attorney General's office says in legal filings that Kris Kobach shouldn't be held personally liable for exposing sensitive data about Kansas voters and that those affected have no constitutional right to privacy for their information.
Court documents filed in recent weeks frame the state's defense of problems associated with the Interstate Crosscheck System, a controversial weapon in Kobach's crusade to snuff out supposed voter fraud.
The American Civil Liberties Union filed a class action lawsuit in June to challenge Kobach's handling of the system, which Kansas has used since 2005 to compare names and birth dates for voters in states willing to swap records. Under Kobach's leadership, the secretary of state's office sent a list of 945 potential double registrants to officials in Florida in 2013.
The unsecured email contained a spreadsheet of voter information, including partial Social Security numbers. Florida officials then released the data last year in response to an open records request from a Kansas resident.
Armed with references to U.S. Supreme Court opinions, the attorney general's office — which is tasked with defending state agencies from litigation — argues the high court "has never held that there is a constitutional right to prevent government disclosure of private information."
ACLU maintains the disclosure of sensitive data is protected by the Fourteenth Amendment, but Lauren Bonds, the legal director for ACLU Kansas, said "even if it were not, it was still reckless and extremely harmful to the voters who have had their information exposed."
Although the ACLU lawsuit targets Kobach both in his individual capacity and as the secretary of state, the attorney general's office argues that he qualifies for immunity.
In his response to the ACLU complaint, assistant attorney general Stanley Parker also contends Kobach didn't violate state statute that prohibits the disclose of Social Security numbers because the revealing spreadsheet isn't a public record.
The confusing assessment seems to suggest that it is OK to turn over confidential information as long as it isn't in response to a Kansas Open Records Act request. Only "documents available for public inspection" are protected by law, Parker wrote in his brief, and the spreadsheet "is not a document made available for public inspection."
The attorney general's office declined to answer questions clarifying that argument.
"The brief speaks for itself," said Jennifer Montgomery, the agency's spokeswoman. "We have no additional comment."
Crosscheck was implemented by the secretary of state's office three years before Kobach won election. Those who oppose the system say it produces false results 99 percent of the time, and some worry it is being manipulated to target Hispanic citizens.
Kobach, a Republican who was defeated last week in his bid to become governor, secured a national spotlight while pushing for laws that he said were necessary to secure Kansas elections. In a separate lawsuit, the ACLU successfully challenged his proof of citizenship requirement for new voters, which a federal judge found to be unconstitutional earlier this year.