Kobach in federal court: What's next
Kansas Secretary of State Kris Kobach could be facing a contempt order from a federal court after a judge on Tuesday tore into the Kansas Republican about repeatedly skirting her orders.
U.S. District Judge Julie Robinson chastised Kobach, a candidate for governor, at a contempt hearing for suggesting that her previous orders have left any room for ambiguity.
"I've had to police this over and over and over again,” Robinson said with frustration during the hearing in Kansas City, Kan.
Robinson in 2016 ordered Kobach to fully register thousands of Kansas voters who had registered at the DMV but had failed to provide proof of citizenship, such as a birth certificate or passport, as required by a Kansas law that Kobach crafted.
“The real question is why has the secretary of state not complied with it until he's called on it. ... There's been no change of rules. There's been no ambiguity,” Robinson said.
The contempt hearing capped two weeks of courtroom battles between Kobach and the American Civil Liberties Union as Robinson weighs whether federal law allows Kansas to impose the requirement.
Robinson will rule in the near future whether to hold Kobach in contempt of court and will separately rule on the overall case, which will determine whether thousands can cast ballots this November when Kansas elects a new governor.
The case holds political ramifications for Kobach as he seeks the GOP nomination for governor and could have national implications because Kobach has advised President Donald Trump on potential changes to federal voting laws.
On his way into the courthouse Tuesday, Kobach said that based on the past two weeks he is not optimistic that Robinson will find in his favor in the overall case, but he is more confident about his chances to prevail on appeal.
Robinson's preliminary order, which was issued in 2016, remains in effect while the litigation continues.
She scolded Kobach for initially informing the voters covered by her order that they were registered only for the 2016 election and for failing to ensure that they receive the same postcard notifications about their registration as other voters.
"I made it clear they're fully registered voters," she said, pounding her desk with her hand.
Robinson told Kobach during a 2016 telephone conference that she would hold him responsible for directing counties to send out these postcards. He promised to do his best and narrowly dodged a contempt hearing in 2016 because of this agreement.
"I honored and trusted what you told me, Mr. Kobach,” Robinson said Tuesday, reminding Kobach of his ethical obligation as an attorney to tell the truth.
Kobach said that his office made a good-faith effort to comply with the judge’s previous instructions but that he was limited because he does not directly control county election offices.
"The county officials are not my agents," he said. "We ask them to do things. We plead with them to do things. But sometimes we are frustrated.”
Kobach said at one point that he can only require county election officials to follow the law, prompting the judge to cut him off.
“This is the law,” she said, reminding him that her order carries the full weight of the law and that it's his duty as the state's chief election officer to ensure counties comply with it.
The ACLU filed a motion in January asking the judge to hold Kobach in contempt and to impose sanctions for failing to send the postcard notices and failing to update the state’s election manual.
Dale Ho, the lead attorney for the ACLU in the case, said the judge could impose fines on Kobach or other penalties if she decides to hold him in contempt.
Kobach was previously fined $1,000 last year for misleading the court about the contents of documents he shared with Trump that urged changes to federal voting laws.
Neil Steiner, a New York attorney working on the ACLU’s team, grilled Bryan Caskey, the state’s director of elections, on whether Kobach’s office had instructed counties to send the postcards to voters covered by Robinson’s order.
Caskey confirmed that he never sent written instructions explicitly telling counties to send out postcards. He said it was discussed on an October 2016 conference call with county election officials, contradicting testimony he had previously delivered during the trial.
Kobach contended that some county election officials had misinterpreted an email from Caskey and failed to send the postcards.
Caskey testified that Douglas County, Shawnee County and Riley County failed to send the postcards but that Sedgwick County’s election commissioner has told him she did send the postcards.
He said he had no knowledge whether Johnson County, the state’s most populous county, sent postcard notices to voters affected by the order. He also could not give a comprehensive breakdown of the rest of the state's counties.
Caskey struggled to recall the details of his conversations with county election officials and also whether Kobach had instructed him to order counties to send the postcards. Steiner pressed Caskey on whether it was his understanding that Robinson's order required this.
"I think I've been unsure of that from time to time," he replied after a long pause.
Steiner asked Caskey if it would have been possible for the state to update the digital voter registration system, which is run by Kobach's office, to ensure that counties would automatically send postcards to the voters covered by the order.
He confirmed that this would have been theoretically possible but said the secretary of state's office did not take such an action.
Kobach's office removed the election manual, which serves as a guide for election officials, from its website after the ACLU raised concerns because it stated that voters needed to provide proof of citizenship, in direct contradiction of the Robinson's order.
"Instead of making that correction, Secretary Kobach simply took the manual down. He took his ball and went home," said Ho, the director of the ACLU's Voting Rights Project.
The judge told Kobach that she never instructed him to take down the manual, and she rejected his suggestion that changing the manual would be too complicated to accomplish quickly.
"That's ridiculous. It's a ridiculous process. ... An online publication can't be updated except for every seven years?" she said.
Kobach has relied on the Wyandotte County sheriff's office for protection during the trial. Moriah Day, Kobach's assistant, sent a request to the sheriff's office on March 6, the first day of the trial, requested an armed escort because of concerns about protesters and "paparazzi," according to emails obtained through an open records request.
The sheriff's office said earlier this month that the escorts for Kobach did not come at an extra cost to the agency because they happened during normal work hours.