A federal judge issued a blistering opinion this week, striking down a voter fraud law that had become Kansas Secretary of State Kris Kobach’s pet project and legacy.
In a 118-page opinion that ably dismantled Kobach’s defense of the law—no, there’s no proof of voter fraud; yes, the law blocked tens of thousands of eligible Kansans from voting; no, your expert witnesses are not credible—U.S. District Court Judge Julie Robinson ruled that the law violated the the National Voter Registration Act (NVRA), also known as the motor voter law, as well as the 14th Amendment.
Robinson’s opinion is an embarrassing indictment: not just of Kansas’ law requiring people to show documentary proof of citizenship (DPOC) when they register to vote, which passed through the state legislature in 2013 with Kobach’s express encouragement, but of Kobach himself.
In Fish v. Kobach and Bednasek v. Kobach—the two cases challenging the law, which were consolidated for trial—Kobach argued that the DPOC law is meant to address a scourge of noncitizens registering en masse to vote. That is, of course, nonsense. There is no such scourge. Such claims about voter fraud have been trumped up by Republicans. They are a fantasy designed to justify the continued suppression of the votes of people of color based on unprovable claims about voter fraud, and—most recently—to assuage the bruised ego of a man who lost the popular vote to the tune of nearly 3 million votes and rather than face that fact, insists that people illegally flooded the polls to cast their ballot for “Crooked Hillary.”
And Judge Robinson, a President George W. Bush appointee, was having none of it: “The Court determines that the magnitude of potentially disenfranchised voters impacted by the DPOC law and its enforcement scheme cannot be justified by the scant evidence of noncitizen voter fraud before and after the law was passed, by the need to ensure the voter rolls are accurate, or by the State’s interest in promoting public confidence in elections,” she wrote.
In other words, it’s a mess of a law that Kobach badly tried to defend in court himself.
On multiple occasions, Kobach tried to introduce expert testimony and evidence about noncitizen voting that he had not previously disclosed to plaintiffs in the case.
Lawyers are not supposed to play fast and loose with disclosure rules and rules of evidence. Federal rules essentially require that parties to litigation lay all their cards on the table in advance. If I’m suing you, you have to give me everything you have that might be relevant to the case, and I have to give you everything that I have that might be relevant to the case. It’s called discovery.
In the movies, you’ll often see lawyers for one side holding evidence back so they can spring it on opposing counsel at trial. But that’s not how it works in an actual court of law. And Kris Kobach—a Yale-trained lawyer—should know that. You can’t disclose evidence for the first time at trial. You can’t decide that the case isn’t going your way and go and find new evidence to submit at trial in order to swing things in your favor. Generally, if you haven’t submitted evidence during discovery, you can’t use it at trial.
This is especially true when it comes to experts. Litigants pay expert witnesses a lot of money to produce comprehensive expert reports. Federal rules require that these expert reports be turned over to the other side far enough in advance of trial so they can find rebuttal witnesses. Needless to say, you can’t put an expert on the stand who is going to testify about information that is not contained in their expert report.
Yet that’s exactly what Kobach did with one of his experts, Jesse Richman. Richman is a political science professor at Old Dominion University who provided an expert report before trial estimating the number of noncitizen registrations and stating that there is a statistically significant rate of noncitizens attempting to register to vote in Kansas.
The problem with Richman’s testimony is that it was based on a methodologically flawed study.
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) when they applied for a driver’s license, 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 noncitizens were trying to register to vote.
But, during trial, Richman was forced to admit that his method is not bulletproof. It doesn’t account for Kansans who became citizens between the time they signed up for a temporary driver’s license and registered to vote. A person on the TDL list could have could have easily become a citizen before registering to vote, and Richman’s methodology doesn’t take that into account.
It gets worse, however.
During trial, Richman estimated that up to 18,000 noncitizens voted in Kansas in the 2016 election, according to court documents. He based that estimate on surveys that he conducted. In one of those surveys, he and a graduate student assistant reviewed a list of suspended voters—those who have tried to register to vote and couldn’t. It’s unclear how, exactly, this figured into his thesis. The really suspect part, though, is that as part of this process, Richman and his assistant flagged names if those names sounded foreign. But how, you may be asking, would they know if a name sounded foreign without racial profiling?
Good question. They can’t.
“Neither Dr. Richman nor his assistant had any experience in identifying so-called foreign names,” Robinson wrote. “By his own admission, their determinations were subjective and based primarily on whether the name was ‘Anglophone,’ meaning originating in the British Isles.”
Robinson noted that the methodology that Richman and his assistant used was also varied. “A review of their coding revealed inconsistencies: for example, of five individuals with the last name of ‘Lopez,’ two were coded as foreign and three were coded as non-foreign,” she wrote.
And here’s where it got really embarrassing: “On cross examination, Dr. Richman admitted that he would have coded Carlos Murguia, a United States District Judge sitting in this Court, as foreign.”
This sort of racial profiling in order to strip citizens of their right to vote is abhorrent. It’s also wildly xenophobic. Many U.S. citizens have foreign-sounding names. “Imani Gandy” isn’t a name that hopped across the pond from Merry Olde England. But I’m still American! Richman’s methodology relies on xenophobic tropes about what a real American is and what a “real American” name sounds like. John Smith. Dave Jones. Those are real American names. Maria Gonzales? Carlos Lopez? Imani Gandy? Not so much.
Put simply, Richman’s use of his “your-name-sounds-foreign” methodology amplify voting rights advocates’ concerns that Kobach’s law was racially motivated.
This wasn’t the only evidence that Robinson highlighted in her decision. Kobach called upon various experts’ testimony, including new data about the supposed scourge of noncitizens voting, and various surveys that these experts conducted that the judge found to be nonsense. The opinion is essentially 118 pages of “Kobach’s experts and evidence are inadmissible.”
The trial was an utter embarrassment for Kobach and a shining example of why lawyers should never defend themselves in court. It’s also a shining example of just how far Kobach is willing to go—to the point of embarrassing himself in court—to defend his bullshit law. Unfortunately for Kobach, Judge Robinson was not going to let Kobach’s shenanigans slide.
“This decision is a stinging rebuke of Kris Kobach, and the centerpiece of his voter suppression efforts: a show-me-your-papers law that has disenfranchised tens of thousands of Kansans,” Dale Ho, an American Civil Liberties Union (ACLU) attorney who argued against Kobach in this case, said in a statement Monday, according to Mother Jones.
“The court found that there is ‘no credible evidence’ for that falsehood, and correctly ruled that Kobach’s documentary proof-of-citizenship requirement violates federal law and the U.S. Constitution,” Ho continued.
Over the past five years, Kobach, who is slated to run for governor of Kansas in the upcoming election, has made voter fraud the central component of his term as Kansas’s secretary of state. Dale Ho doesn’t call him the “king of voter suppression” because it sounds cute. Ho calls him that because Kobach has fought fervently to disenfranchise voters, even serving as an adviser on Trump’s now-defunct Election Integrity Commission, which Trump formed to make it Kobach’s and others’ job to find a kernel of truth in Donald Trump’s persistent lies about noncitizen voting.
But no truth has been found because voter fraud does not exist.
And in his valiant effort to find some evidence of voter fraud somewhere, Kobach embarrassed himself badly in court—by withholding evidence and trying to spring it on the ACLU at trial, or by trying to introduce that evidence after Judge Robinson had already excluded it. This is just something that lawyers do not do.
Unsurprisingly, Judge Robinson was not amused by Kobach’s antics. As a sanction, she ordered him to take six hours of Continuing Legal Education (CLE) classes on federal or Kansas civil rules of procedure or evidence—and that’s in addition to any other CLE courses required by his law license. You’ll have to believe me when I say this is a big deal.
All lawyers are required to take a certain number of hours of CLE classes to maintain their license. In Kansas, lawyers are required to take 12 hours per year. Most lawyers—at least the ones that I know—think CLE is a pain in the ass. So Robinson requiring Kobach to take six more hours on top of the 12 hours he is already required to take is a pretty stern rebuke of Kobach’s antics. Certainly I have never heard of a judge ordering a lawyer to take classes on civil procedure because their performance in court was so utterly embarrassing.
Next time, hire some lawyers, Kris. Or better yet, don’t go to the mat for such patently unconstitutional laws in the first place.