Kris Kobach and his ‘proof of citizenship’ law on trial

GOP voter suppression specialist, Kris Kobach, is unbelievably the Secretary of State of Kansas. He is the author of  the so-called “Arizona Taxpayer and Citizen Protection Act,” Prop. 200 in 2004, provisions of which require proof of citizenship to register to vote and presenting a photo I.D. to receive a ballot.

In 2012, the Ninth Circuit Court of Appeals sitting en banc in Arizona v. Inter Tribal Council, held that the requirement to provide proof of citizenship to register to vote is invalid as preempted by the National Voter Registration Act of 1993 (NVRA) — but the requirement to provide voter identification at the polling place is valid. In 2013, the U.S. Supreme Court affirmed in a 7-2 decision, with Justice Antonin Scalia delivering the Court’s opinion, the Ninth Circuit’s ruling that Arizona’s proof of citizenship requirement is preempted by the NVRA.

Kris Kobach had enacted a similar law in Kansas, the Kansas Secure and Fair Elections (SAFE) Act in 2011.

The response of Kobach to the Supreme Court ruling, along with a series of hanger-on Arizona Secretaries of State, all Republicans, was to set up a dual voter registration system, one for the NVRA federal voter registration form which would allow citizens to vote only in federal races (denying them their right to vote in state and local races),  and one for state voter registration forms, that require proof of citizenship, and allow voter to vote in all races and ballot measures.

Kansas was, of course, sued (a case was not brought in Arizona) and lost. A federal court blocked the Kansas law from being fully enforced in the 2016 election. There is now a trial to determine whether it will be in effect in 2018 and beyond. Kobach, representing himself, to face ACLU over whether thousands in Kansas can vote:

A federal trial that starts Tuesday in Kansas City, Kan., will determine whether thousands of potential Kansas voters can cast ballots this November when the state chooses a new governor.

And the lead attorney who will be fighting to preserve the law that could block those Kansans from voting is a man who hopes to be on the ballot: Kansas Secretary of State Kris Kobach, a Republican candidate for governor and the architect of the state’s proof of citizenship law.

“It’s kind of unusual for the person who is trying to set the rules of the election to also be running in that election. Some might say there’s something of a conflict of interest there,” said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, who will be squaring off in court against Kobach.

The law, which requires prospective voters to provide a copy of their birth certificate or passport, has been the subject of years of litigation. Supporters say it prevents non-citizens from voting, but opponents say it actually makes it more difficult for rightful voters to register.

Between 16,000 and 22,000 potential voters could be affected by the judge’s eventual ruling in the case, which focuses on whether Kobach can require people who register at the Division of Vehicles to provide such documents. The ACLU argues he lacks the authority under the National Voter Registration Act, commonly known as the motor voter law.

“The stakes are very high,” Ho said. “Our clients were disenfranchised in the 2014 election. They were able to vote in the 2016 because of the preliminary ruling in this case. If that ruling isn’t made permanent, they very well could lose their ability to vote in November.”

Kobach, who crafted the law and leads the office that enforces it, will serve as his own attorney in court rather than rely on the state’s attorney general, a move that is typical for Kobach but rare for state officials.

Let’s just say that the trial in Fish v. Kobach (another case, Bednasek, was merged with it for the trial) has not been going well for Kobach. As the legal axiom says, “When you represent yourself, you have a fool for a client.”

Talking Points Memo is following the case with live updates. Judge Keeps Correcting Kobach Lawyers On Trial Procedure:

As Kansas Secretary of State Kris Kobach defends his state’s proof-of-citizenship voter registration law in court, his team is having some issues following trial procedure.

On multiple occasions, U.S. District Judge Julie Robinson has interrupted questioning to walk Kobach and his crew of lawyers through the intricacies of moves such as admitting evidence and asking witnesses about previous depositions. Robinson, an appointee of President George W. Bush, has even instructed Kansas’ attorneys on the correct ways to phrase their questions.

Rather than rely on the representation of the Kansas Attorney General’s office, Kobach has opted to represent himself, with the assistance of other attorneys in his office. They haven’t exactly given the impression of crack litigators.

The first hang-up occurred even before the opening statements Tuesday, when Kobach sought to introduce a demonstrative exhibit. Lawyers for the ACLU objected, as they had only been emailed the exhibit at 10:43 p.m. the night before, well after a 24-hour deadline before trial started that the judge imposed.

“The whole point of that is so everyone knows what they’re working with,” Robinson said.

Later Tuesday, Sue Becker, an attorney in Kobach’s office, received a brief lecture from Robinson on “evidence 101.” Robinson’s consternation came as Becker was cross-examining Donna Bucci, a challenger in the case. The judge knocked Becker for not laying the foundation for evidence before presenting it during the cross-examination.

“Evidence 101 — not going to do it,” Robinson said. “We’re going to follow the rules of evidence.”

The hiccups continued on Wednesday.

Becker also cross-examined Marge Ahrens, a co-president of the League of Women Voters-Kansas, another challenger in the case. Becker had presented Ahrens with a booklet from the group’s convention, and asked her to read sections of it. Robinson scolded Becker for asking Ahrens to read from the booklet without first establishing why the sections at issue were relevant.

Robinson said that according to the rules, Becker could only use that document in order to impeach testimony Ahrens was now giving.

“I am not just going to let you read the contents into the record,” Robinson said.

Garrett Roe, another attorney for the Kansas Secretary of State, also got a lesson from Robinson when he was cross-examining Parker Bednasek, a college student challenging the law. Roe was seeking to bring up statements Bednasek made in a deposition given previously in the case. Robinson told Roe he needed to ask Bednasek the relevant questions first to get his testimony now, before turning to his deposition.

“That’s the procedure,” she said.

OK then … Kobach reportedly came to court today with an armed escort, citing potential security threats. Riiight.

Today’s update: Kobach Using Spreadsheet Showing Five Non-Citizen Voters:

A spreadsheet created by Kansas Secretary of State Kris Kobach’s office became a focal point in the trial over Kansas’ voter registration proof-of-citizenship requirement. The spreadsheet shows that only five alleged non-citizens have voted in Sedgwick County, the second most populous Kansas county, over the last two decades.

Those alleged non-citizen voters cast collectively about 10-12 votes, the earliest in 2004, testimony revealed. According to the challengers in the case, that’s out of 1.3 million votes cast in the relevant time period in the county. Sedgwick County accounts for a little over one sixth of Kansas’ population.

Yet Kobach is using those examples to defend his proof-of-citizenship requirement, which was implemented in 2013. An appeals court has said Kobach must prove that non-citizen voting is a “substantial” problem in Kansas. So the spreadsheet — along with testimony expected in the days to come from “experts” in voter fraud — is key to Kobach’s argument. 

That spreadsheet fails to meet the commonly understood definition of “substantial.”

The ACLU, which is representing some of the challengers, sought to show that the list was inflated.

The spreadsheet details 38 cases where non-citizens purportedly voted, registered to vote or attempted to register to vote. Eighteen successfully registered before the law was enacted, 16 were blocked by the law, and four registered after the law was temporarily blocked in 2016, the spreadsheet alleges.

It was discussed during the testimony of Tabitha Lehman, the county’s election commissioner.

Lehman testified that her office started collecting the data systematically in 2013, and that she would send the information about each instance to the secretary of state’s office, which assembled the spread sheet. Part of Lehman’s effort included sending her staff to naturalization ceremonies. There they could identify people who had registered as non-citizens when they attempted to register again — a service offered at naturalization ceremonies — now that they were citizens.

Many of the people cited on the spreadsheet as non-citizens had registered at the DMV, where people getting drivers licenses or state IDs are also asked if they want to register to vote.

In her questioning of Lehman, an ACLU attorney representing the challengers noted that in some cases the non-citizens never voted, even after being registered for seven, 12, and even 18 years. Some of those people only discovered that they had been registered at their naturalization ceremony, when they sought to register, the testimony revealed.

In another case, a non-citizen applicant was called by an elections official to verify the applicant’s name, which it appeared had been taken down incorrectly. The applicant told the official that he or she did in fact change their name, but also that they previously had sought to get themselves removed from the voter rolls, according to notes on a page of the spreadsheet that were displayed in the courtroom.

One non-citizen had not checked the box indicating he or she was a citizen on the voter registration form.

The Kansans challenging the state’s voter registration proof-of-citizenship law also got their day in court to explain why the requirement impeded the right to vote. The GOP voter suppression specialist’s response: Kobach Lawyers Suggest Would-Be Voters Just Didn’t Try Hard Enough To Register:

One witness said the $27 it would have cost her to replace her birth certificate was tough for her tight budget. Another had to search the home of his recently deceased mother in another state for his birth certificate — a search that was unsuccessful. Another witness detailed a voter registration drive that focused on people who had tried to register but hadn’t submitted proof-of-citizen documents. The activists leading the drive brought a portable copying machine door to door, and even still, only a fraction of the targeted registrations were completed.

In response, lawyers representing Kansas Secretary of State Kris Kobach tried to argue that those obstacles weren’t really burdens. And they suggested that these would-be voters just hadn’t tried hard enough.

Steven Wayne Fish, 37, the lead plaintiff and a Lawrence, Kansas resident, testified that he sought to register to vote while renewing his driver’s license in 2014. When he realized he needed to a document proving his citizenship, he searched high and low for his birth certificate. Because Fish was born on a now-closed military base in Illinois, he had no idea where it was located or where the hospital record of his birth would even be stored.

Fish even searched the house of his mother, who had recently died, but with no luck.

Another plaintiff, Charles “Tad” Stricker, testified that he had just started working a 60-plus hours-a-week job as a hotel manager when he tried to register to vote. He had taken a day off to obtain a Kansas driver’s license, having recently moved back to the state, and knew it was the deadline to register to vote for the next election. Stricker realized when he got to the DMV that he was missing a document required for his driver’s license, and ran home to grab all of his documents just in case, including his birth certificate. After successfully renewing his license, Stricker left the DMV with the understanding that he had been registered, particularly because he asked when he would receive his voter information. He was not aware he wasn’t registered until he showed up to vote that November.

Donna Bucci, a cafeteria worker in a Kansas prison, testified that she didn’t know where her birth certificate was and that the $27 it would cost to replace it — she was born in Baltimore — was not an easy expense for her.

In their cross-examination of the challengers, Kobach and his legal team attempted to suggest that Fish, Stricker and Bucci could have successfully registered if they’d just put in the effort.

This kind of bullshit is the reason why we need universal (automatic) voter registration.

BTW, if Kansas loses this case, so does hanger-on Arizona. There is no justification for the dual voter registration system that denies citizens their full participation to vote.

You can follow Tierney Sneed’s live updates of the trial here at Talking Points Memo.

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