Kansas Secretary of State Kris Kobach’s signature voter-suppression initiative received a likely fatal drubbing on Monday when U.S. District Judge Julie Robinson permanently invalidated the law in a comprehensive and exasperated 118-page ruling. Robinson’s decision is remarkable for a number of reasons: It definitively debunks Kobach’s allegations of widespread noncitizen voting in Kansas, dismantles the claims of “expert” voter fraud alarmists like Hans von Spakovsky, and orders Kobach himself to attend extra continuing legal education to redress his egregious misunderstanding of civil procedure and the rules of evidence.
A little-noted aspect of Monday’s opinion, however, may prove to be even more consequential than this factual shellacking. Robinson did not only hold that Kansas’ proof-of-citizenship measure runs afoul of the National Voter Registration Act; she used the extensive findings gathered at trial to hold that it also violates the U.S. Constitution. Kobach has long hoped to amend the NVRA to permit proof-of-citizenship laws like Kansas’. Now, thanks to Robinson, even if Congress did change the statute to his liking, he could not legally implement his pet initiative.
Monday’s decision in Fish v. Kobach turns primarily on the proper interpretation of the NVRA. The law allows states to demand only the “minimum amount of information necessary” when registering voters, and allows states to require that all voters attest to their American citizenship under penalty of perjury. In 2016, the 10th U.S. Circuit Court of Appeals ruled that Kansas may go further and require proof of citizenship only if it can demonstrate that “a substantial number of noncitizens have successfully registered” notwithstanding the citizenship oath. So Robinson conducted a bench trial to give Kobach an opportunity to prove the existence of substantial noncitizen registration.
In an extraordinarily ill-advised move, Kobach decided to represent himself at trial. He quickly broke countless rules of evidence and civil procedure, prompting Robinson to deliver multiple lectures from the bench on basic trial procedure. Even worse, he called “experts” whose ostensible proof of voter fraud rested on flawed methodology, flagrant bias, and guesswork. They embarrassed themselves and Kobach with their flailing performances, unintentionally revealing the absurdity of their own claims. Shortly after the trial ended, Robinson held Kobach in contempt of court for disregarding her previous orders and then trying to throw his staff under the bus. (He had already been fined $1,000 for earlier misrepresentation to the court.)
The whole fiasco was a profound humiliation for Kobach and his allies. But through it all, the secretary of state hinted that he had a backup plan: If the courts agreed that Kansas could not demand proof of citizenship under the NVRA, Kobach would simply persuade Congress to amend the NVRA. In fact, he had long intended to pursue this goal. When Kobach met with Donald Trump after the 2016 election, he carried a paper into his meeting that mentioned altering the NVRA. (He later lied about the paper’s content to conceal his scheme; that’s what prompted the $1,000 fine.) Kobach also sent an email to the Trump transition team a day after the election explaining that he would draft “amendments to the NVRA to make clear that proof of citizenship requirements are permitted.” Had Robinson merely ruled that the Kansas law violated the NVRA, Kobach would have mounted a crusade to gut the federal statute through an amendment.
Robinson did, of course, find that Kansas’ proof-of-citizenship law ran afoul of the NVRA, since Kobach could not prove that a “substantial number” of noncitizens had registered to vote before its implementation. But she also gathered so much evidence about the measure’s impact that she decided to address the constitutional claims, as well. Because the case was so easily resolved on statutory grounds, without resort to the 14th Amendment’s Equal Protection Clause, this move was unusual and unexpected. Yet Robinson felt she had enough information to adjudicate the issue, so she forged ahead.
To gauge the constitutionality of a restriction on voting, courts must balance “the character and magnitude” of the injury against a state’s “justifications for the burden.” They must also “determine the legitimacy” of the state’s justification and “consider the extent to which” it’s really necessary.
Kobach’s law, Robinson noted, placed an extraordinary burden on the right to vote. During the three years it was in effect, more than 30,000 people were disenfranchised, and the state did little to help them regain their right to vote. To the contrary, it forced them to track down and pay for a birth certificate that might be in another state—then, if they couldn’t find it, to plead with the State Election Board to let them vote again. Yet Kansas proffered no proof that this massive burden is necessary in the slightest, as it put forth no evidence of significant voter fraud or noncitizen registration. “Based on this record,” Robinson wrote, “the magnitude of the burden on unregistered eligible Kansas voters cannot be justified by the state interests relied on by defendant.” Thus, the law infringes upon voters’ equal protection rights.
There is an excellent chance that, on this extensive record, the 10th Circuit will once again decline to second-guess Robinson and affirm her ruling. And, contra Kobach’s fantasies of a Supreme Court showdown, it seems unlikely that the justices would wish to wade into this toxically political dispute. In all, the odds are good that Robinson’s decision will remain the law in Kansas. That means that even if Kobach succeeds in his quest to amend the NVRA, Kansas will not be able to re-enact a proof-of-citizenship requirement.
Kobach’s worst-case-scenario, in other words, has come true—and he has nobody but himself to blame. The secretary of state fought this case all the way to the bitter end, dead set on using it as a vehicle to prove the existence of rampant voter fraud. Instead, he gave Robinson all the proof she needed to determine that Kansas’ law is unconstitutional. No one, it seems, is better at undermining Kobach’s asinine voter suppression tactics than Kris Kobach himself.
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