A federal judge will allow the ACLU to show video of Kansas Secretary of State Kris Kobach speaking about his advice to President Donald Trump as part of a trial that will determine whether thousands can vote in Kansas this November.
The video of a 2017 deposition will serve as a piece of evidence in the American Civil Liberties Union's challenge of a Kansas law that requires prospective voters to provide proof of citizenship, such as a birth certificate or passport, before they can register to vote.
Kobach’s team objected Wednesday to the showing of the video on the grounds that they had not had a chance to review it. They asked that a transcript of the deposition be read instead.
U.S. District Judge Julie Robinson agreed to delay the viewing of the 45-minute video until Thursday to give Kobach’s team a chance to review it, but she rejected the request to prevent it from being played at the trial.
"It's a video deposition. Video depositions are played and not read,” she said after a lengthy discussion Wednesday morning.
Kobach confirmed that the video includes a portion of the deposition where he was asked about documents that he shared with Trump during a 2016 meeting.
He did not offer any other details on the content of the video, which could potentially shed light on the president's thinking on voting rights.
Kobach was photographed carrying a stack of documents that included recommended changes to the National Voter Registration Act when he arrived for the 2016 meeting with Trump, which took place shortly after the presidential election.
Trump later appointed Kobach to serve as vice chairman of a presidential commission on voter fraud.
The commission faced criticism from voting rights advocates who saw it as intended to advance new restrictions on voting across the country, similar to the policies that Kobach has championed in Kansas. The commission was disbanded in January after a series of lawsuits and backlash from state officials.
On his way into a federal courthouse in Kansas City, Kan., on Wednesday, Kobach asked the guards if he or an associate would be allowed to bring a firearm the next day and check it at their desk if Kobach isn’t accompanied by a security detail.
The guards told him no.
Kobach, a Republican candidate for governor, said he was concerned about potential security threats on his way in and out of the courthouse. He has relied on local law enforcement for protection during the trial.
The case centers on whether Kansas has the authority to require prospective voters to provide proof of citizenship, such as a birth certificate or passport, under a law that Kobach crafted.
Supporters say the law prevents non-citizens from voting, but critics say it puts up additional hurdles to register that make it more difficult for young people, low-income people and members of minority groups to vote.
The ACLU contends that Kobach lacks the authority to require the documents under the federal National Voter Registration Act, which allows people to register at the DMV when they obtain a license.
The trial could determine whether thousands of potential voters can cast ballot in November when Kansas chooses a governor.
The first witness called during the trial’s second day was Marge Ahrens, a former co-president of the Kansas League of Women Voters, who testified on the impact to voter registration drives after the law took effect in 2013.
“It was a dead hit. It was absolutely a blow. … The league was really knocked off its feet,” Ahrens said. “We stopped registering voters. It was just that pure and simple.”
Ahrens said the extra requirements limited the ability of league volunteers to register high school and college students.
She said the league’s Sedgwick County chapter registered roughly 4,000 people in 2012, the last election before the proof-of-citizenship law took effect, but 2014 saw that number drop to 400.
Sue Becker, an attorney from Kobach's office, tried to poke holes in that argument during a cross-examination.
"If a 16-year-old gets their birth certificate to get their driver's license, is there any reason why they can't when it's time for them to vote?" Becker said.
Kobach said Wednesday that whichever side loses the district court trial will likely appeal to the 10th Circuit Court of Appeals. He said the issue, which has already been the subject of years of litigation, is unlikely to be resolved for several more years.
Kobach has prosecuted only one case against a non-citizen for illegally voting since he gained prosecutorial power in 2015.
He has repeatedly pointed to data from Sedgwick County as proof that non-citizens will become registered to vote without the law on the books.
A 2016 spreadsheet based on data collected by the Sedgwick County Election Office shows 11 cases of non-citizens registering to vote between 2003 and 2010, and 14 additional cases of non-citizens who allegedly attempted to vote after the law went into effect.
Kobach's office has continued to update the spreadsheet since then and said Wednesday that it has identified at least 38 cases of non-citizens registering or attempting to register through this year, but the office did not immediately provide The Star with a copy of the current spreadsheet.
Robinson would not allow this spreadsheet to be entered into evidence Wednesday after the ACLU objected that Kobach's office has not provided the raw data used to create the spreadsheet.
The ACLU also contended that the allegations that the non-citizens attempted to register are hearsay.
The ACLU grilled Sedgwick County Election Commissioner Tabitha Lehman, a Kobach appointee, about whether two cases she sent to Kobach to include on the list were truly examples of non-citizens attempting to register to vote rather than cases of administrative error.
In both cases the people checked boxes on forms at the DMV saying that they were not citizens, but their voter registration forms were still forwarded to the election office by the DMV.
“I think it’s a dicey one, so I sent it on," Lehman said of one of the cases.