A Kansas law that blocked tens of thousands of voter registrations goes on trial this week in federal court — testing whether fraud is common enough to warrant tougher registration rules.
Kansas Secretary of State Kris Kobach wants to prove his oft-made and much-challenged assertions that voter fraud isn’t just a risk, but a real and widespread problem.
If he fails in court, the state will no longer be able to block voter registrations at driver’s license offices for failing to show such things as birth certificates or passports to prove citizenship.
Rick Hasen, a professor of law and political science at UC Irvine, says a Kobach win would allow other Republican-controlled states to impose their own stricter voter registration laws.
The case will also draw attention because of Kobach’s national role in promoting the idea that immigrants game the American electoral system.
“Here’s a case where that very issue is going to be put on trial,” Hasen said.
Kobach’s statements have made national headlines, especially after he began talking to President Donald Trump about overhauling federal election law and backed his assertion that millions of illegal voters may have cost him the popular vote to Hillary Clinton.
Though Politifact dubbed that idea “Pants on Fire” false, Kobach argues that Democrats turn a blind eye to the problem of noncitizens casting ballots.
“It does seem that many in the Democrat party — hopefully not all — seem to think that it’s OK if aliens vote,” Kobach told Fox News ahead of this week’s trial. “Heck, it helps the Democrat party.”
The Republican vying to become Kansas’ next governor also led Trump’s now-defunct election integrity commission.
Now comes the trial in Kansas City. It could last more than a week and is one of several legal challenges that have tied up Kobach’s Secure and Fair Elections, or SAFE, law in state and federal courts.
Since 2013, that law has required Kansans who want to vote to back up their assertion of American citizenship with papers.
Opponents of Kobach’s law say it disenfranchises people who lack such documents — especially the elderly, people living in poverty and younger voters, such as college students who are far from home without their birth certificates.
The American Civil Liberties Union represents the League of Women Voters — a nonpartisan, progressive civic engagement group that Kobach has called communist — and several Kansans who were blocked from voting. They took Kobach to court.
ACLU lawyers say some of the plaintiffs didn’t have documents showing citizenship, while some did but were still blocked despite having shown these at the DMV.
Dale Ho, who’s litigating the Kansas case for the ACLU, says Kobach’s law allowed him to hold back tens of thousands of voter registration applications without good reason.
“He’s been talking for years about supposed hordes of non-citizen immigrants registering to vote and corrupting American elections,” Ho said, “but he hasn’t been able to show an iota of evidence.”
"He's been talking for years about supposed hordes of non-citizen immigrants registering to vote and corrupting American elections, but he hasn't been able to show an iota of evidence."
The would-be registrants tended to be young and politically unaffiliated, compared to the general electorate.
This week’s trial gives ACLU a chance to scale back Kobach’s law by leaning on the 1993 National Voter Registration Act — often called the Motor Voter Act. That law says swearing your citizenship under penalty of perjury is sufficient for registration. Liars risk prison, fines and deportation.
If the organization succeeds, Judge Julie Robinson of the U.S. District Court for the District of Kansas will block the Kansas law when it comes to anyone registering through the DMV process created by that 1993 law.
That motor-voter process, which boosted voter registration nationally, allows streamlined registration while getting or renewing a driver’s license. One-third of Americans who register to vote use the DMV process. In Kansas, the ACLU says, that figure tops 40 percent.
Kobach already faces other roadblocks to implementing his SAFE law in full.
Pending Robinson’s decision, he is barred from requiring birth certificates or other such documents from DMV voters. Kobach is already blocked by a separate federal lawsuit — from making that demand of voters who register using a federal paper application.
A state court ruling, meanwhile, has stopped Kobach from circumventing this by allowing people who register through the DMV or federal form to vote just in federal elections and not state or local elections.
Kobach’s office didn’t respond to repeated requests for an interview for this story.
In court filings, he argues the motor-voter process isn’t rigorous and lets non-citizens slip through.
“The SAFE Act was what finally provided a tool to prevent non-citizens from registering to vote,” he wrote.
Under a higher court’s decision that laid out what Kobach needs to prove in order to win this week’s trial, he has to show more evidence of non-citizens gaming the system. Judges have made clear his evidence so far doesn’t cut it.
Kobach’s briefs indicate at least 43 suspected non-citizens registered in Kansas since 2000, and 11 voted. Kansas has about 1.8 million people on its voter rolls.
In this round of the fight, Kobach will present statistical estimates and other research that he argues point to much higher rates of fraud existing without being detected. The ACLU will challenge his numbers as junk science.
If Kobach convinces Robinson with his evidence, he will then also have to prove that the only way to prevent the illegal voting is by requiring more documents from people — instead of, for example, working to make sure the DMV doesn’t mistakenly offer foreigners voter registration.
Wendy Weiser, director of the democracy program at New York University’s Brennan Center for Justice, doubts Kobach has the proof he needs.
“Voting by non-citizens turns out to be incredibly rare,” she said, “because there are real strong safeguards in place.”
By contrast, she said, a study by the center concluded 7 percent of Americans don’t have easy access to the type of documents Kobach is seeking from voters. That rate is higher among the poor.
The Brennan Center represents the plaintiffs in a separate lawsuit that currently prevents Kansas from applying its SAFE law to people who register with a federal paper form.
Whatever the outcome following this week’s trial, it could feed into court challenges elsewhere or clear the way for more states to mimic what Kobach has done in Kansas.
Arizona, Georgia and Alabama have laws similar to the one in Kansas, though the latter two aren’t currently implementing theirs.
Hasen, the law professor, says the narrow victory by George W. Bush over Al Gore in the 2000 presidential race underscored for Republicans and Democrats that “the rules of the game matter.”
"We've seen the emergence of ... red state election law and blue state election law."
“We've seen the emergence of what I call red state election law and blue state election law,” he said. “States with Republican legislatures and governors have been passing laws that make it harder to register and vote. States with Democratic governors and legislatures have been passing laws that make it easier to register and vote.”
Why? Hasen says the theory, at least, is that the people hindered or helped by these laws are likely to vote Democrat.
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Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KMUW, Kansas Public Radio and KCUR covering health, education and politics. You can reach her on Twitter @Celia_LJ.
To contact KMUW News or to send in a news tip, reach us at news@kmuw.org.
