Trial of proof-of-citizenship voter registration law ends, decision of court to follow

Closing arguments in the Kansas proof-of-citizenship voter registration law case were Monday. Testimony ends in Kansas voting law trial. U.S. District Judge Julie Robinson said she couldn’t say when she would issue an opinion but that she was aware this year’s elections were quickly approaching. She gave attorneys until April 16 for any final legal filings in the case.

The GOP’s voter suppression specialist, Secretary of State Kris Kobach (above), returned to court on Tuesday for a contempt hearing for violating the judge’s orders. Judge harshly criticizes Kobach during contempt hearing:

A visibly angry federal judge on Tuesday blasted Kansas Secretary of State Kris Kobach for his office’s failure to ensure that certain voters are notified that they are eligible to vote in the upcoming election while a lawsuit over a state voting law makes its way through the courts.

U.S. District Judge Julie Robinson criticized Kobach during a hearing on a motion from The American Civil Liberties Union to hold Kobach in contempt of court for not updating the state’s election guide or ensuring that county election officials send postcards to residents who registered to vote at driver licensing offices without providing proof of citizenship. Tuesday’s hearing came after seven days of testimony in the ACLU’s challenge of the state’s voter registration law.

Kobach, a conservative Republican who is running for Kansas governor, argued he is not in contempt in part because sending the postcards and revisions in the state’s election guide were not explicitly addressed in a preliminary injunction Robinson issued in May 2016 and a later written order. The injunction found that Kansas can’t require voters to produce proof of U.S. citizenship, such as a birth certificate or U.S. passport, when they register at licensing offices.

Robinson said several times during the hearing that her ruling made it clear the voters covered by her injunction were not to be treated differently from other registered voters. She also said Kobach had assured her in telephone hearings that he had instructed his office to order county election officials to mail the postcards to all voters covered by her order.

“Why would I order something in writing that you’ve told me is being taken care of?” Robinson asked Kobach. “(As an officer of the court) you are under an ethical obligation to tell me the truth. If you tell me you are going to do that, I trust that.”

The secretary of state’s office has no authority to order county officials to follow directions from his office, Kobach told the judge.

“We ask them to do things,” Kobach said. “We plead with them to do things. But sometimes we are frustrated.”

The ACLU also wants Kobach to correct erroneous and misleading information in the state’s official election manual to make clear that, for now, those voters are exempt from the state’s proof-of-citizenship requirements. Rather than correcting information in the online election manual, Kobach removed it from the secretary of state’s website.

Judge Robinson did not indicate when she would issue a ruling on the contempt motion.

Kobach was held in contempt of court last year for misleading the court about the contents of documents he was photographed taking into a November meeting with then President-elect Donald Trump. The court fined Kobach $1,000 and ordered him to testify about the documents.

The Kansas City Star editorializes, Kobach did not prove his case on voter fraud:

Kansas Secretary of State Kris Kobach did not prove the need for the state’s vote-suppressing proof of citizenship requirement in the two-week trial that ended on Monday. But then, he never has.

He did manage to exhaust the patience of the federal judge who heard the case. Maybe that’s because he does not seem to have shown a good-faith effort to comply with her past order to treat voters who have not provided proof of citizenship the same as other registered voters until she rules.

“I’ve had to police this over and over and over again,” U.S. District Judge Julie Robinson, who was appointed by President George W. Bush, told Kobach during a contempt hearing in Kansas City, Kan., on Tuesday. “I made it clear they’re fully registered voters.”

It’s up to Robinson to decide whether to hold him in contempt for not doing anything to let them know that. If pounding on her desk signals a contempt finding is likely, he’s in trouble.

Robinson will also rule on the larger issue of the validity of the law, and whether the thousands of Kansans who’ve tried to register without proof of citizenship can vote this fall.

Kobach, a Republican who has advised President Donald Trump on voter fraud and is running for governor this year, has insisted that millions of illegal votes cost Trump the popular vote in 2016. There is no evidence to back up that claim, either.

He estimates that some 18,000 non-citizens are already registered to vote in Kansas. But he can point to only 129 non-citizens who either registered or tried to register in the last 19 years.

He always calls these cases “the tip of the iceberg,” while Dale Ho, an attorney for the American Civil Liberties Union, calls the sum of the evidence “more of an ice cube.”

To justify the Kansas law, Kobach has to prove that there is “substantial” non-citizen voting.

Kobach argues that because a single vote can change the outcome of an election, even one non-citizen participating in the process should be considered substantial.

Sorry, but NO. Substantial carries its dictionary definition: “considerable in quantity : significantly great.” One does not meet this definition.

Robinson’s repeated warnings to Kobach’s team throughout the course of the trial also raised questions about his lawyering.

“We’re not going to have a trial by ambush here,’’ she told him after he tried to introduce evidence that had not been shared with plaintiffs. “That’s not how trials are conducted.”

However Robinson rules, Kobach’s supporters will thank him for doing just what he has done to fight the almost entirely imagined scourge of voter fraud.

And at the polls in August, Republican primary voters will get to show whether that’s their priority, too.

The New York Times similarly editorialized, Kris Kobach’s Voting Sham Gets Exposed in Court:

The modern American crusade against voter fraud has always been propelled by faith. That is, an insistent belief in things unseen — things like voters who show up at the polls pretending to be someone else, or noncitizens who try to register and vote illegally.

Fraud like this is so rare as to be almost unmeasurable, and yet its specter has led to dozens of strict new laws around the country. Passed in the name of electoral integrity, the laws, which usually require voters to present photo IDs at the polls or provide proof of citizenship to register, make voting harder, if not impossible, for tens of thousands of people — disproportionately minorities and others who tend to vote Democratic.

The high priest of this faith-based movement is Kris Kobach, the Kansas secretary of state and gubernatorial candidate who has been preaching his gospel of deception to Republican lawmakers for years. He has won plenty of converts, even though he has failed to identify more than a tiny handful of possible cases of fraud. In his eight years as secretary of state, he has secured a total of nine convictions, only one of which was for illegal voting by a noncitizen; most were for double-voting by older Republican men.

GOP voter fraud!

For the past two weeks, however, Mr. Kobach has been forced to make his case in a far more rigorous setting — the fact-finding process of a federal trial. In a Kansas City courtroom, Mr. Kobach and his fellow true believers have struggled to defend a 2013 state law that requires prospective voters to prove their citizenship before they can register.

It has not gone well for Mr. Kobach. The lawsuit, brought by the American Civil Liberties Union on behalf of Kansas residents who were blocked from voting under the new law, contends that the legislation violates federal law, which requires only that prospective voters attest to their citizenship under penalty of perjury. Meanwhile, it disenfranchised tens of thousands of Kansans, who were disproportionately younger voters or voters with no party affiliation.

And how many noncitizens did the law stop from voting? Squint really hard. One would think that after all these years, Mr. Kobach would have something to show for his dogged efforts. Yet according to his own witnesses, Kansas, which has 1.8 million registered voters, has identified 129 noncitizens it says registered or tried to register since 2000. Of those 129 people, 11 actually voted, and it’s not clear how many of these cases represent intentional fraud, as opposed to honest mistakes or clerical errors. But Mr. Kobach is convinced, calling these findings “the tip of the iceberg.” If so, the iceberg is melting fast.

Mr. Kobach’s game may work with partisan lawmakers, but not with federal judges. At the beginning of the trial, Mr. Kobach, who is representing himself, tried to introduce what he said were new data on the number of Kansans whose voter registrations were suspended for lacking proof of citizenship. Judge Julie Robinson of Federal District Court said no, reminding him that the deadline for introducing pretrial evidence had passed the night before. “We’re not going to have a trial by ambush here,” the judge said when Mr. Kobach tried again a few days later.

How does it feel to have your papers out of order, Mr. Kobach?

Of course, restrictive voting laws like these have never been about protecting electoral integrity. They’re about keeping certain people away from the ballot box, often based on who they are — or are assumed to be. On Tuesday, one of Mr. Kobach’s witnesses, a political scientist, Jesse Richman, testified that up to 18,000 noncitizens have registered or tried to register in Kansas. When the A.C.L.U.’s lawyer asked him about his methods for analyzing the state’s list of suspended voters, Mr. Richman said that, among other things, he flagged foreign-sounding names. What about a name like “Carlos Murguia,” the lawyer asked. Would he flag that one? Yes, Mr. Richman said. He was then informed that Carlos Murguia is a federal district judge who sits in the courthouse where the trial is being held.

Burn!

It all seems like a big joke until you remember that laws like these have already had their intended effect. In Kansas, more than 22,000 people who tried to register had their applications suspended or canceled for not having proof of citizenship. And in Wisconsin, which President Trump won by fewer than 23,000 votes, a strict voter-ID law kept at least 17,000 voters from the polls in 2016.

Remember also that just days after the 2016 election, Mr. Kobach scored a meeting with President-elect Trump in which he urged the passage of a nationwide proof-of-citizenship requirement. A few months later, Mr. Trump appointed Mr. Kobach to lead his so-called election integrity commission. In January, after months of futility and infighting, the commission folded, having made no findings and issued no recommendations. No surprise there — there’s virtually nothing to find. There has been no epidemic of noncitizens voting, despite Mr. Trump’s baseless claim (endorsed by Mr. Kobach) that he lost the popular vote only because of millions of illegal voters. And there are hardly any examples of in-person voter fraud, the only kind that could conceivably be stopped by voter-ID laws. A federal judge once compared such laws to using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”

Unfortunately, the courts have not always brought the appropriate degree of skepticism to these laws. The Supreme Court upheld the first voter-ID law it considered, in 2008, even though the Indiana lawmakers who passed it had not identified a single case of fraud that the law would have prevented. Former Justice John Paul Stevens, who wrote the opinion in that case, later called it a “fairly unfortunate decision.” Richard Posner, a former federal appeals court judge who also upheld the Indiana law, later said that voter-ID laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”

More recently, courts have gotten better about questioning the evidence and rationale for these laws, striking down some of the strictest ones, in Texas and North Carolina, for deliberately discriminating against minority voters. That’s the right approach. These laws masquerade as common-sense measures, but they are in truth anti-democratic shams, and it is gratifying to see them unravel in the harsh light of a federal courtroom.

Hopefully, Judge Robinson will strike down the Kansas law. And Arizona’s law – Prop. 200 (2004) – also written by Kris Kobach, will go down with it, as will the dual voter registration system that exists only in Kansas and Arizona.

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