When a federal lawsuit challenging Kansas’s proof of citizenship voter law goes to trial in March, Kansas Secretary of State Kris Kobach plans to be in the courtroom.
He’ll be the attorney defending the law he crafted.
Rarely, if ever, do statewide elected officials represent themselves at trial.
The unusual situation is made possible by Attorney General Derek Schmidt.
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Kobach, who is being sued in his official capacity as secretary of state, received permission from Schmidt to represent himself at the trial-court level in the lawsuit after he agreed that the secretary of state’s office will pay for all costs of the case, Schmidt’s office said.
Kobach said his self-representation saves tax dollars. The attorney general’s office likely would also have to hire outside attorneys because it doesn’t have experts on election law, adding hundreds of thousands of dollars in costs, he said.
"The advantage is the state gets an experienced appellate litigator who is a specialist in this field and in constitutional law for the cost the state is already paying, which is my salary," Kobach said.
At stake in the trial: a 2011 law that requires people to provide documentary proof they’re a citizen, often through a passport or birth certificate, when they register to vote. Kobach says the law keeps non-citizens from voting. But critics say voter fraud is relatively rare and the requirement makes it more difficult for citizens to vote.
If the law is ultimately thrown out, people won’t have to present as much documentation when registering to vote.
A Wichita Democrat has raised questions about whether allowing Kobach to lead the defense is best for Kansas. Schmidt’s office often defends state laws or contracts with outside lawyers.
“The attorney general, I’m sure, took Mr. Kobach at his word that he would provide proper representation to the state,” said Rep. John Carmichael, a Wichita Democrat who is an attorney.
"But in view of what appears to be violation of rules of professional responsibility, I would hope that Attorney General Schmidt gives this very serious consideration."
Carmichael is referring to Kobach’s previous conduct in the case. Last year, a federal judge fined him $1,000 for misleading the court about documents he took into a meeting with then President-elect Donald Trump. The American Civil Liberties Union, which is spearheading the lawsuit, has also filed a contempt of court motion against Kobach alleging he has disregarded court orders to register voters. Kobach says the motion is without merit.
Schmidt stands by allowing Kobach to take the lead in the case. Jennifer Montgomery, a spokeswoman for the attorney general, said it is not uncommon for state agencies to represent themselves in lawsuits.
"Because agencies sometimes have specialized expertise in the subject matter at issue in a particular lawsuit, the attorney general may agree to let willing agencies handle their own defense as a way of managing limited legal resources," Montgomery said.
Kobach’s decision to represent himself in the lawsuit is "rather unusual," said Dale Ho, director of the ACLU’s Voting Rights Project and one of the attorneys involved in the case.
Ho emphasized that everyone has a right to their choice of counsel, but said Kobach’s self-representation creates complications. He is sometimes the person best-positioned to testify about what happens in the secretary of state’s office.
The plaintiffs in the lawsuit have called Kobach as a witness.
"I have litigated against many government officials, including many who are lawyers, but I have never litigated against any other government official who has represented him- or herself. I’m not even aware of another one doing so," Ho said.
In addition to litigating the case, Kobach continues to lead the secretary of state’s office and campaign for governor.
Kobach made clear he believes he has enough time to work on the case and fulfill his other responsibilities. The duties of secretary of state "ebb and flow" he said, adding that the judge worked with the parties in the lawsuit to find dates that work well.
If the trial was held in the couple months before a general election, it would interfere, he said. But in March, it isn’t a problem.
Kobach also said he suspends his campaign when he works on briefs in the case and would do so for the trial.
"I believe that winning the lawsuit on behalf of the people of Kansas and on behalf of our proof of citizenship law is more important than the time I spend on the campaign. It’s that important to me that I’m willing to sacrifice campaign time," Kobach said.
If Kobach becomes governor, he said he would reassess his personal involvement in lawsuits.
But he didn’t rule out continuing to litigate.
"The governor’s duties – they’re more 24-7 than the secretary of state’s duties. I anticipate that if I were governor, I would probably be unable to find the time to do this, but I don’t want to say 100 percent," Kobach said.
"It’s conceivable, but I think it’s far less likely."