Kansas Secretary of State Kris Kobach has a big week ahead of him. On Tuesday, Kobach’s signature “voter fraud” measure—a requirement that all voters show proof of citizenship—goes on trial in a federal district court. The ACLU has sued to the block the law, which disenfranchised about 35,000 people, or one in seven Kansas voters, in its first three years. Kobach and his office will defend the act’s legality by attempting to prove that a significant number of non-citizens have registered to vote in Kansas. The law has been on hold since May 2016, when U.S. District Judge Julie A. Robinson ruled that it likely violated the National Voter Registration Act.
Kobach’s conduct outside of court, particularly on Donald Trump’s “election integrity” commission, is notoriously sleazy. The outwardly nativist Republican routinely lies about evidence of voter fraud to justify voter suppression measures (and demonize immigrants in the process). You might expect Kobach to temper his chicanery in court—but the litigation over his proof-of-citizenship law suggests that he is temperamentally incapable of playing by the rules. On the eve of trial, Kobach has already been reprimanded by the court three times, and is still at risk of being held in contempt of court. Here’s a partial summary of Kobach’s flagrant misconduct:
• After Robinson issued her injunction, she directed Kobach to add to the voter rolls an estimated 18,000 Kansans who were barred from registering because they lacked a birth certificate or passport. Kobach agreed to count these individuals’ votes—but failed to notify them that they were registered or add their name to the state’s registration website. Even worse, he refused to give them regular ballots for the August 2016 primary, instead providing them with “provisional” ballots. The ACLU filed a motion; Robinson ordered Kobach to appear in court and explain why he had not fully complied with her order. He finally complied just one day before his own contempt hearing.
• The ACLU asked Kobach to turn over the document he carried into a meeting with Donald Trump that mentioned the NVRA. He refused, claiming that they were irrelevant to the Kansas case. In fact, they were highly relevant, and Kobach made several false claims about their contents. A magistrate judge found that Kobach had made “patently misleading representations to the court about the documents” and fined him $1,000. Robinson upheld the sanction.
• On Jan. 30, 2018, Kobach’s expert witness Jesse Richman—the author of a highly dubious voter fraud study favored by Trump—surprised the ACLU with a supplemental report estimating rates of noncitizen voting. Kobach had plenty of time to warn the ACLU about Richman’s new report, which used data that had been available since July 2017. Instead, he waited to file it until the last minute, depriving the plaintiffs of sufficient time to respond. Robinson excluded the report as untimely, writing that Kobach had “sandbagged plaintiffs and the court five weeks before trial.”
• On Jan. 8, the ACLU filed another motion to hold Kobach in contempt of violating a different court order. The group exhaustively documented Kobach’s refusal to send certificates to voters who tried to register but lacked proof of citizenship. These certificates state critical information, such as voters’ precincts, polling location, and districts for different offices. The ACLU also demonstrated that Kobach had refused to correct extremely deceptive information in the official Kansas election manual that suggested these voters could not lawfully cast a ballot. On the eve of trial, Kobach has still not addressed these problems. Dale Ho, director of the ACLU Voting Rights Project, told me on Monday that the motion is still pending, and he expects Robinson will address it during trial.
Every lawyer makes mistakes. But Kobach’s behavior cannot be written off as a series of good-faith errors. The secretary of state has consistently ignored the orders of a federal court and lied in order to withhold information. This strategy isn’t just unethical; it’s extremely foolish. That same court will now oversee a landmark trial probing the prevalence of voter fraud. Kobach has already proved that he cannot be trusted to tell the truth or follow the law. Robinson simply has no reason to believe a word he says at trial.
One more thing
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