A federal judge will decide whether thousands can vote in Kansas this fall after the conclusion of a two-week trial that saw a leading candidate for governor scolded and scrutinized.
Kansas Secretary of State Kris Kobach, a Republican candidate for governor, led the legal team defending the state’s proof of citizenship requirement, a policy he crafted, against a pair of federal lawsuits.
The case will have national implications because Kobach has previously advised President Donald Trump on voter fraud and remains in contact with his administration.
The trial wrapped up Monday evening, but Kobach still faces a contempt hearing Tuesday.
Kobach’s office has pointed to 129 non-citizens that it says either registered or attempted to register over nearly two decades, but he has repeatedly said this number could be “the tip of the iceberg” and has offered estimates that as many as 18,000 are on the state’s voter rolls.
Dale Ho, the lead attorney for the American Civil Liberties Union in the case, poked holes in these claims during his closing arguments Monday.
He pointed out that Kobach’s evidence from Sedgwick County shows that only 18 non-citizens registered going back to 1999 and only five of them ever voted compared to millions of ballots cast in the county during that timeframe.
“The iceberg on close inspection, your honor, it’s more of an ice cube,” Ho told U.S. District Judge Julie Robinson. “There’s no evidence that it’s in the thousands as Secretary Kobach has asserted.”
Ho played for the second time during the course of the trial a Kansas City Star video in which Kobach asserted that millions of illegal votes cost Trump the popular vote in 2016 and pointed to testimony from Kobach’s own witnesses disputing that.
“These stories about non-citizens stealing our elections, they’re not real,” he said.
Conversely, he said that his clients, who were blocked from voting in the 2014 gubernatorial election, were real and “the damage to our democracy when their voice is silenced is real.”
Kobach argued that a University of Kansas student suing the state has blocked himself by refusing to provide his birth certificate to the state despite providing it to the U.S. Navy.
“He has one. He cannot stand in the shoes of the rest of the people who supposedly do not have one,” Kobach said.
He also argued that no one has been blocked from voting by the law regardless of whether they have the documents because of a process that allows people go before the State Elections Board, which Kobach chairs, in order to get registered if they do not have the document.
“They may have a process they haven’t gone through yet, but no one has been prevented because of a lack of documents,” Kobach said.
“You don’t even need to be there… You can do it all by telephone,” he said.
However, Ho argued the existence of this process undercuts Kobach’s argument that having a person attest on a voter form that he or she is a citizen is insufficient.
One of the people who went before the State Elections Board simply declared his citizenship and signed a document, which the board accepted as proof. “I think this begs the question as to why swearing under oath (on a voter form) is insufficient,” Ho said.
A federal appeals court has previously ruled that Kobach must prove that there is substantial non-citizen voting in order to justify the law.
Kobach said that this depends on how you define substantial.
“As a fraction, it’s going to look tiny,” Kobach acknowledged.
But he said that when weighed against the potential consequences in a close election, non-citizen voting is substantial because one vote could change the outcome.
Mark Johnson, a Kansas City-based attorney who represents the KU student, argued that the law replaces an effective system for weeding out non-citizens — requiring people assert their citizenship on voting forms — with a system that attempts to achieve perfection by making it impossible for non-citizens to vote.
That has affected many rightful voters, Johnson argued.
“In seeking something they know is unattainable, they have knowingly deprived thousands of their fundamental right to vote,” Johnson said.
During the course of the trial, Kobach’s team repeatedly ran into procedural hurdles, including on Monday when it offered Pat McFerron, an Oklahoma-based pollster, as an expert witness.
Kobach’s team had neglected to have McFerron supply an expert report as required and failed to disclose that it was paying him an hourly rate of $150 for his testimony.
Robinson, the judge, told Sue Becker, an attorney on Kobach’s team, that she was “being schizophrenic” by trying to position McFerron as both an expert witness and a lay witness.
She later said she was troubled and mystified by the failure to disclose the payments, which are allowed for expert witnesses but not lay witnesses.
Robinson will also preside over a contempt hearing for Kobach Tuesday.
The ACLU alleges that Kobach has failed to comply with a previous order in the case that requires him to treat voters who have not provided proof of citizenship the same as other registered voters until the judge rules.
A January filing from the ACLU also contends that Kobach’s office has refused to correct information in its manual for county election officers on how to handle these voters, who were allowed to cast ballots in the 2016 election under the order.
Kobach could face fines or other punishment if the judge agrees that he has flouted the previous order.