“The wheels of justice turn slowly, but grind exceedingly fine” – variation on an old proverb.
Slowly, indeed. It’s been almost four years since I have had to update this post. (Update) 10th Circuit rules against Kansas on proof of citizenship requirement for voter registration – what about Arizona?
Election law expert Richard Hasen posts today, Breaking: In Major Decision Rejecting Kris Kobach’s Claims of Massive Voter Fraud, Tenth Circuit Unanimously Holds Kansas’s Documentary Proof of Citizenship Requirement to Register to Vote Violates Constitution and Federal Law:
In a major ruling, a 10th Circuit panel (consisting of 2 judges, as a third judge on the panel had passed away), a Tenth Circuit panel has held that a Kansas anti-voting law championed by former Secretary of State Kris Kobach violated both the Constitution’s equal protection clause and was preempted by the federal motor-voter law. The law at issue required those who wished to register to vote in Kansas to provide documentary proof of citizenship—such as a birth certificate or naturalization certificate—in order to register to vote. Until the ACLU secured a preliminary injunction against this law, about 30,000 people had their voter registrations suspended and were not allowed to vote in Kansas elections.
I wrote about the trial in this case (then called Fish v. Kobach and now Fish v. Schwab on appeal) in my book, Election Meltdown. I called the case the most important voting trial of the 21st century so far because it was the chance for those like Kobach who claim that voter fraud is a major problem in the United States to prove that in a court of law under the rules of evidence. As I detail in the book, Kobach’s proof was woefully inadequate and his expert witnesses embarassingly bad. Kobach was later sanctioned for how he ran the trial and for misleading the ACLU about the contents of a document he had given to President Trump.
Kobach had claimed that the amount of noncitizen voting was the tip of the iceberg, but the trial court, after an extensive trial where Kobach was given every chance to prove his case, as no more than “an icicle, largely created by confusion and administrative error.”
Today’s 10th circuit opinion agreed that preventing voter fraud is a compelling interest, but that Kansas could not prove its law was necessary to prevent such fraud:
To start, the district court found essentially no evidence that the integrity of Kansas’s electoral process had been threatened, that the registration of ineligible voters had caused voter rolls to be inaccurate, or that voter fraud had occurred. In particular, it found that, “at most, 67 noncitizens registered or attempted to register in Kansas over the last 19 years.” Aplt.’s App., Vol. 47, at 11519. Of these, “[a]t most, 39 noncitizens have found their way onto the Kansas voter rolls in the last 19 years.” Id. at 11520. The Secretary does not argue that these factual findings are clearly erroneous. Thus we are left with this incredibly slight evidence that Kansas’s interest in counting only the votes of eligible voters is under threat. Indeed, even as to those 39 noncitizens who appear on the Kansas voter rolls, the district court effectively found that “administrative anomalies” could account for the presence of many—or perhaps even most—of them there.Id.
Supporting this determination is the fact that Kansas’s voter-registration database included 100 individuals with purported birth dates in the 19th century and 400 individuals with purported birth dates after their date of voter registration. And so it is quite likely that much of this evidence of noncitizen registration is explained by administrative error.
The Secretary also presented the district court with out-of-state evidence about election fraud and noncitizen registration. But the district court concluded that, “looking beyond Kansas, [the Secretary’s] evidence of noncitizen registration at trial was weak.” Id. at 11519. It explained at length why it excluded large portions of the Secretary’s expert testimony and found much of the remaining testimony unpersuasive. Id. (explaining that one of the Secretary’s experts was “credibly dismantled” by the architect of the survey upon which the expert had relied and that the court “d[id] not fully credit” a second expert’s testimony “given its inclusion of misleading and false assertions”). We have no doubt that inaccurate voter registrations exist in our country, see, e.g., Husted v. A. Philip Randolph Inst., — U.S. —-, 138 S. Ct. 1833, 1838 (2018) (“It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate.”), but the Secretary fails to connect this generalized information to the DPOC requirement at issue here or to argue that the district court clearly erred in finding that “the trial evidence did not demonstrate the largescale problem urged by [the Secretary].” Aplt.’s App., Vol. 47, at 11520. In light of the significant burden on the right to vote, we thus do not rely on the Secretary’s out-of-state evidence of voter-fraud and nonvoter registration.
I do not know if Kansas will seek en banc review or cert. before the Supreme Court. This law was Kobach’s baby and he’s no longer in office. This would be a terrible record to take up to try to get a reversal because Kobach litigated this case so poorly.
Make no mistake–this is a huge victory. As the 10th circuit noted, unlike voter identification cases where it sometimes has been hard for plaintiffs to prove that the law burdens most voters, this law literally disenfranchised tens of thousands of people. “These factual findings create a fundamental distinction between this case and Crawford: based on an extensive record, the district court here concluded that the Kansas Secretary of State actually denied approximately thirty thousand would-be voters’ registration applications in his implementation of the DPOC requirement, while, in Crawford, the scant evidence before the Court left it with the unenviable task of attempting to estimate the magnitude of the burden on voting rights, largely from untested extra-record sources.”
This is a huge win for voters, and it clears away a law that disenfranchised thousands but prevented no appreciable amount of voter fraud.
As Rick Hasen said back in 2016, “A perfect string of losses so far for Kobach. It couldn’t have happened to a nicer charlatan.” His losing streak continues.
GOP voter suppression specialist Kris Kobach was 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 and 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 for voter registration is preempted by the NVRA.
Kris Kobach 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.
Because Arizona and Kansas were joined at the hip through Kris Kobach’s machinations (Arizona was not a party to this lawsuit, but it did work in concert with Kansas Secretary of State Kris Kobach in challenging the federal voter registration form for proof of citizenship), these 10th Circuit Court rulings should be considered persuasive precedent for finding that requiring proof of citizenship to register to vote and Arizona’s “dual” election system violates both the Constitution’s equal protection clause and is preempted by the federal motor-voter law.
Signing an affidavit attesting to citizenship on the voter registration form, under penalty of perjury, is voter protection enough. A registered voter should be permitted to vote in any and all election contests.
UPDATE 6/2/20: Kansas’ Republican attorney general plans to ask the U.S. Supreme Court to allow the state to require new voters to provide papers documenting their citizenship when registering. Kansas to ask Supreme Court to save voter citizenship law:
Attorney General Derek Schmidt announced Tuesday that he will appeal a 10th U.S. Circuit Court of Appeals decision in April that said the state could not enforce a proof-of-citizenship law. An appeals-court panel said the law violated the U.S. Constitution’s guarantee of equal legal protection as well as a federal voter registration law.
Democratic Gov. Laura Kelly decried Schmidt’s decision, saying he was supporting voter suppression.
If the U.S. Supreme Court takes the case, it could have broader implications because Alabama, Arizona and Georgia have proof-of-citizenship laws on their books, and Republican officials in other states have wanted to enact them. Critics of such laws believe they’re designed to suppress the vote, particularly among groups that tend to vote Democratic.