Yesterday, Chief Judge Julie Robinson of the U.S. District Court for the District of Kansas, a George W. Bush appointee, struck down Kansas's toughest-in-the-country voter ID* law that had required proof of citizenship at the polling booth. The law, authored and enforced by controversial Kansas Secretary of State (and gubernatorial candidate) Kris Kobach, violated both the Equal Protection Clause of the 14th Amendment and the National Voter Registration Act, Robinson ruled.
Kobach's law, enacted in 2013 and then suspended via preliminary injunction by Robinson in March 2016, led to a reported 16,319 Kansans having their voter registrations canceled, and 31,089 being blocked when trying to register. In order to justify those numbers, Kobach was tasked by the judge to demonstrate that noncitizen voter fraud was a "substantial" problem—a tough climb given that he had as of earlier this year prosecuted a grand total of nine illegal voters in Kansas, eight of whom were U.S. citizens who had voted in two states.
So how did Kobach do?
"The Court finds no credible evidence that a substantial number of noncitizens registered to vote under the attestation regime," Judge Robinson found. "He has submitted evidence of 129 instances of noncitizen registration or attempted registration since 1999, but looking closely at those records reduces that number to 67 at most. Even these 67 instances are a liberal estimate because it includes attempted registrations after the…law was passed, a larger universe than what the Tenth Circuit asked the Court to evaluate. Only 39 successfully registered to vote. And several of the individual records of those who registered or attempted to register show errors on the part of State employees, and/or confusion on the part of applicants. They do not evidence intentional fraud."
This is hardly Kobach's first humiliation when tasked with substantiating outlandish numerical claims about illegal-immigrant voting. In January, President Donald Trump dissolved his Presidential Advisory Commission on Election Integrity, which had been run by Kobach, after the group failed shambolically to provide anything like evidence for Trump's factually insane suggestion that between three million and five million people voted illegally for Hillary Clinton in 2016.
But yesterday's new twist was what Volokh Conspiracy analyst Jonathan H. Adler described as Judge Robinson's "quite remarkable" sanction against Kobach for his own disastrous performance defending the case: a mandatory six hours of Continuing Legal Education. There was "a pattern and practice by Defendant of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial," Robinson found. "It is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules."
Kobach's office has announced plans to appeal the ruling to the U.S. Court of Appeals for the 10th Circuit. In the meantime, one of the immigration restrictionist's other hobbyhorses—having the Census Bureau ask all respondents about their citizenship status in the decennial survey for the first time since 1950—proceeds apace. On June 8, in response to a lawsuit, the Justice Department released 1,300 pages of documents related to the formulation of that policy change, which was cheekily justified at the time as an attempt to better enforce the otherwise Trump-neglected Voting Rights Act. What did those documents show? Here's a summary from Mother Jones:
The initial push for the citizenship question now appears to have come from [Steve] Bannon, back when he was a top White House adviser. In July 2017, months before the Justice Department proposed the question, Kansas Secretary of State Kris Kobach—at the time the vice chair of President Donald Trump's now-defunct Election Integrity Commission—wrote to Commerce Secretary Wilbur Ross. He told Ross that he was writing "at the direction of Steve Bannon" and said it was "essential" that the citizenship question be added to the census. Kobach wrote that the absence of a citizenship question "leads to the problem that aliens who do not actually 'reside' in the United States are still counted for congressional apportionment purposes."
Steve Bannon is now in the political wilderness, and Kobach is still smarting from Chief Judge Robinson's unusually personal rebuke, but their nationalist, fact-untethered policy agenda is alive and well. Kobach, a former birther and author of Mitt Romney's "self-deportation" policy, is not just adequately represented in the Oval Office, he's as likely as not to be the next governor of Kansas. This is and will increasingly continue to be what the face of the GOP looks like.
* UPDATE: Election law specialist Rick Hasen, whose website I linked to in the first paragraph, tweets at me that "It is not a voter id law." I presume he is drawing a distinction between providing documentation of citizenship (PDOC, in the lingo) in order to register to vote, and presenting visual identification at the polling booth. Since Hasen has forgotten more election law than most law schools have ever learned, I will defer to his hair-splitting.
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