Kris Kobach used as an expert witness in a voting rights trial Friday a controversial scholar who wanted to block Democrats and mainstream Republicans from serving on a presidential commission.
Hans von Spakovsky, a senior fellow at the Heritage Foundation who has written a book on voter fraud, testified in support of a Kansas law that requires voters to provide proof of citizenship. It was the fourth day of the federal trial in Kansas City, Kan.
Von Spakovsky contended that other methods of identifying non-citizens on the voter rolls, such as comparing the voter rolls against the list of driver’s licenses for legal immigrants, are insufficient because they would not be able to identify illegal immigrants.
He also said that the threat of prosecution for voter fraud does not do enough to deter non-citizen voting "because we basically have an honor system” in U.S. elections.
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The American Civil Liberties Union grilled von Spakovsky about his qualifications and credibility to serve as expert in the case, which could decide whether thousands are eligible to vote in November when Kansas chooses a governor.
Von Spakovsky served alongside Kobach, the Kansas secretary of state and defendant in the case, on President Donald Trump’s now-disbanded commission on voter fraud.
He worked for the U.S. Department of Justice during President George W. Bush’s first term, as did Kobach.
Attorneys from the ACLU and the Kansas City-based Dentons law firm, which are representing voters suing Kobach’s office, questioned Von Spakovsky about an email he wrote in early 2017 expressing concerns about Trump’s decision to make the voter fraud commission bipartisan.
The email was forwarded to U.S. Attorney General Jeff Sessions and made public after it was obtained by the Campaign Legal Center through an open records request.
“There isn’t a single Democratic official that will do anything other than obstruct any investigation of voter fraud,” von Spakovsky wrote in the email.
Von Spakovsky said in the email that the decision to include Democrats on the commission showed how little the Trump White House understood the issue and went onto express concerns about some of his fellow Republicans.
“If they are picking mainstream Republican officials and/or academics to man this commission it will be an abject failure because there aren’t any that know anything about this or who have paid attention to the issue over the years,” von Spakovsky said.
Dale Ho, the lead attorney for the ACLU in the case, played an audio exchange between von Spakovsky and two reporters in which he denied being the sender of the email or having any concerns about the commission's bipartisan nature.
Von Spakovsky accused Ho of mischaracterizing his answer to reporters, which came at the end of an eight-hour hearing of the commission.
“I was answering truthfully. I was simply asked in essence if I sent an email to Jeff Sessions. The answer was no. It was no at the time. It is no today,” he said.
He explained the email was forwarded to Sessions without his knowledge.
“The lawyer that I had sent it to, who as I said didn’t work for the federal government then, doesn’t work for the federal government now, unbeknownst to me, he sent it to the attorney general,” he said.
Ho also questioned von Spakovsky about his interpretation of the 14th Amendment, which differs from that of the U.S. Supreme Court and the U.S. State Department.
Von Spakovsky confirmed that he disagrees with most legal scholars that a person automatically becomes a U.S. citizen if he or she is born on U.S. soil under the 14th Amendment, saying that his interpretation is that at least one parent must also be a citizen.
Von Spakovsky testified that even a small number of non-citizens on voter rolls “could make the difference in a race that's decided by a small number of votes,” but during cross-examination acknowledged that he could not name a specific federal election that was decided by non-citizen votes.
Von Spakovsky wrote the 2012 book “Who's Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk.”
Ho asked him if his research for that book was peer-reviewed or whether he had ever written a peer-reviewed article on voter fraud.
"I'm not an academic, so I don't use the peer review process,” von Spakovsky replied.