This week, Kansas Secretary of State Kris Kobach bumbled his way through trial in a case challenging a voter fraud law he was instrumental in passing back in 2013. The law requires people to show documents proving their citizenship when they register to vote.
In Fish v. Kobach, Kobach has been trying to make the case that the law addresses a real concern about voter fraud involving noncitizens registering en masse to vote, seemingly hoping that no one will notice that his claims are a fantasy largely concocted to suppress the votes of people of color based on unprovable claims about voter fraud. But he faltered this week—one of his key witnesses got into arguments with the judge and attorneys from the American Civil Liberties Union (ACLU) and made it fairly obvious that the law had been implemented through racial profiling. Another offered testimony that actually bolstered the ACLU’s claims that the law burdens Kansan voters.
Ultimately, a Kobach loss could halt the domino effect of other states passing similar laws designed to undercut the right to vote—especially for people of color and other historically marginalized groups.
The Kansas law requires proof of citizenship through any one of 13 forms of identification, and if none is provided, the prospective voter is entitled to submit evidence of their eligibility to the state election board followed by a hearing. The ACLU charges that this is a violation of the National Voter Registration Act (NVRA), also known as the motor voter law, which was passed in 1993 to make it easier for people to register to vote when they sign up for a driver’s license. Indeed, the process in Kansas sounds like a pain in the ass. Since the law was passed in 2013, only six people who lacked the required documentary proof-of-citizenship have been approved by the state election board to register to vote. Jo French was one of them.
Kobach put French on the stand, hoping to demonstrate just how easy the election board hearing process is, even if a prospective voter doesn’t have the necessary documents.
It didn’t work out the way he planned.
French testified that the process she had to go through before she could even get to the hearing process was burdensome, according to HuffPo:
She said she was blocked from registering to vote when she went to get a Kansas driver’s license in 2016. She was born in Arkansas, and paid $8 in an unsuccessful effort to get her birth certificate, which she knew the state wouldn’t have because she was born at home and tried to get it before. She eventually got a copy of her family Bible, baptismal records and high school records.
After hunting down the records, French said she got someone to drive her 40 minutes to a hearing in Topeka with the election board.
Though she said she supports the proof of citizenship law, she said she was insulted that no one believed she was a citizen.
Oops. The first rule of examining a witness is never ask a question when you don’t already know what the answer will be.
If French’s experience sounds familiar, it’s likely because you listened to the Boom! Lawyered podcast episode, “Hello! It’s 2018 and Your Right to Vote Has Been Cancelled” or you’re familiar with my article explaining that yes, actually, it is quite difficult to get voter ID.
As bad as that was, however, Kobach’s attempts to question one of his expert witnesses, Jesse Richman, were even worse.
Expert witnesses are paid a lot of money to do comprehensive expert reports, which must be turned over to the other side far enough in advance of trial so they can find rebuttal witnesses. Suffice it to say, you can’t put an expert on the stand who is going to testify about information not contained in their expert report.
Yet that’s exactly what Kobach appears to have done. Richman, a political science professor at Old Dominion University, provided an expert report before trial stating that there is a statistically significant rate of noncitizens attempting to register to vote in Kansas. As Kobach was flipping through a slideshow of data points during Richman’s testimony, ACLU attorney Dale Ho objected to some of the featured information, saying that it had not been included in Richman’s report. Trust me when I say, as a former litigator, that presenting surprise expert witness evidence in the middle of trial is a big no-no.
Another no-no? Arguing with the judge, which is what Richman did when he loudly complained that the data featured in the slide show was too featured in his report. Needless to say, Judge Julie Robinson wasn’t having any of it, and laid into Richman: “You don’t speak unless you’re asked a question. You aren’t here as an advocate, you aren’t here to trash the plaintiffs, and you aren’t here to argue with me,” she said, according to ProPublica reporter Jessica Huseman’s Twitter account.
But it got worse.
As Dale Ho questioned Richman about his methodology, it became clear that it was intrinsically flawed.
His methodology was as follows: In order to prove that a statistically significant rate of noncitizens attempted to register to vote in Kansas, Richman would compare a list of noncitizens who had obtained temporary driver’s licenses (TDLs) to the Kansas voter registration file. The theory is that if names appeared both on the TDL list and the voter registration file, that would prove throngs of non-citizens were trying to register to vote.
But, as Richman was forced to admit, that method is not bulletproof. For example, the methodology doesn’t account for Kansans who became citizens between the time they signed up for a temporary driver’s license and registered to vote. As Talking Points Memo’s live-blog notes, “Richman conceded that it was ‘possible’ a person on the TDL list became a citizen before registering. Pressed further by Ho, Richman said he had made a request to get [Department of Homeland Security] … data to verify his match list, but that request was not fulfilled for his report.”
And then, if you can imagine it, it got even worse.
Richman estimated that up to 18,000 noncitizens voted in Kansas in the 2016 election, according to the Associated Press. How did he come up with that number? He based the estimates on surveys he conducted. One survey involved flagging names on a list of suspended voters—those who have tried to register to vote and couldn’t—if those names sounded foreign.
When asked about that methodology at trial, Richman admitted that coding the name as foreign or not was subjective: As Ho noted in his questioning, two Lopezes were coded as foreign, while three other Lopezes were not.
And here’s the kicker: When asked at trial whether Richman would code the name “Carlos Murguia” as foreign, Richman said that he would. Unfortunately for Richman, Carlos Murguia is a federal judge in the same court.
What this tells us is that Richman’s methodology—flagging names that sounded like they belonged to undocumented immigrants—didn’t account for the fact that many U.S. citizens have foreign-sounding names. It relied, instead, on xenophobic tropes about what a true American is and what a “true American” name must sound like. Put simply, it’s racial profiling: Richman’s use of it certainly doesn’t contradict any arguments that Kobach’s law was racially motivated.
This trial seems to be the culmination of Kobach’s career-long dedication to making it damn near impossible for Kansans to vote, but it looks like a losing battle thus far. Shortly after the law’s passage, plaintiffs sought and won an injunction, which Kobach appealed. In October 2016, in a unanimous opinion, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit agreed with the ACLU that the NVRA pre-empted the Kansas law. The Tenth Circuit also said that by requiring proof of citizenship, Kobach was disenfranchising 18,000 motor voter applicants and called it a “mass denial of a fundamental constitutional right.”
Perhaps that stinging rebuke from the Tenth Circuit is why Kris Kobach is representing himself—the Secretary of State may not have wanted to pour resources into hiring outside counsel to defend this lawsuit.
That’s not Kobach’s explanation, of course. He has been trying to spin it as a good thing for taxpayers: “The advantage is the state gets an experienced appellate litigator who is a specialist in this field and in constitutional law for the cost the state is already paying, which is my salary,” Kobach said according to the Wichita Eagle.
Sure, Kris. I guess.
Thus far, the trial has been a bit of a spectacle, and is not exactly highlighting Kobach’s stellar litigation skills. To the contrary, he seems to be bumbling his way through this trial, forcing the judge to explain basic rules of evidence and trial procedure to him and his team along the way, according to Talking Points Memo.
Kobach will get a chance to improve his performance next week; the trial resumes on Monday. But if this week is any indication, his efforts to convince the court that voter fraud is a rampant problem will fail. Kobach’s claims about voter fraud are nothing more than a thinly veiled racist attempt to keep people of color from casting ballots, and to assuage the ego of President Donald Trump—who still can’t get over that he lost the popular vote by four million votes.
As my colleague and #TeamLegal compatriot Jessica Mason Pieklo noted, Kobach’s trial performance “is what happens when you’ve been told you are exceptional your entire life but don’t ultimately have the receipts.”