Bending Toward Justice: Voting rights trial with national implications begins today in Kansas

In a lawsuit brought by the ACLU, Kansas Secretary of State Kris Kobach will have to produce credible and substantiated evidence justifying the state’s onerous voter registration requirements. 

Toto, we’re not on Fox News anymore.

After years of spouting off about one voter fraud conspiracy after another, Kansas Secretary of State Kris Kobach will be in federal court in Kansas on Tuesday, where the evidentiary standards are rigorous and the burden of proof is real.

Kobach is the defendant in a case challenging a Kansas law that requires those registering to vote via the state Division of Vehicles to provide additional documentation of U.S. citizenship. The American Civil Liberties Union represents the plaintiffs, and charges that 17,000 Kansas citizens were blocked from registering to vote by this law, in violation of the National Voter Registration Act.

Section 5 of the NVRA requires states to include a voter registration form as part of the application for a driver’s license. That form may not impose requirements for information or documentation beyond the minimum needed by state election officials to determine the applicant’s eligibility. Under the NVRA, the registration form must also clearly state the criteria for eligibility, including citizenship, and include an attestation that the applicant meets those criteria, signed under penalty of perjury.

In 2011, Kansas enacted a law that requires those seeking to register to vote at a Division of Vehicles office to provide documentary proof of citizenship. The law identifies 13 acceptable documents for proving citizenship, including a birth certificate and a U.S. passport. Those without such documentary proof may provide other evidence and seek a hearing before a panel made up of the lieutenant governor, secretary of state, and attorney general.

Several Kansans denied the right to register because they lacked the proper documents sued to stop Kansas from enforcing the law. Chief U.S. District Judge Julie A. Robinson in Kansas City granted a preliminary injunction in May, 2016 and ordered Secretary Kobach to accept all otherwise eligible voter-registration forms missing documentation for the purposes of congressional and presidential elections.

On appeal, the Tenth Circuit affirmed the district court’s preliminary injunction order. The court held that a state can only enforce a documentary proof of citizenship requirement if it can show that the attestation of citizenship, under penalty of perjury, is insufficient to keep noncitizens from voting. For that factual showing, the state must prove that a substantial number of noncitizens have successfully registered to vote using only the attestation requirement.

What does the Tenth Circuit mean by substantial? Kobach argued that evidence of even one noncitizen successfully registering to vote qualified as substantial, because any particular election can be decided by one vote. But the appeals court rejected that argument:

This purpose [of the NVRA] would be thwarted if a single noncitizen’s registration would be sufficient to cause the rejection of the attestation regime. Indeed, under Secretary Kobach’s “one is too many” theory, even the [documentary proof of citizenship] regime could conceivably be found to require less than the minimum information necessary, allowing states to employ still harsher and more burdensome means of information gathering to prevent noncitizen registration. The NVRA does not require the least amount of information necessary to prevent even a single noncitizen from voting.

Judge Robinson will preside over the bench trial (meaning the case will be heard only by her, and not a jury), and earlier this year, she issued an order narrowing the factual and legal issues for trial. The focus will be dueling expert testimony on the question of the number of noncitizens who have successfully registered to vote in Kansas. The ACLU’s experts will testify that very few noncitizens have registered to vote in Kansas; the state’s experts will say the number is much larger.

Tierney Sneed at Talking Points Memo aptly described the experts Kobach will be relying on:

To help Kobach make his case, he’ll be calling on a former member of his now-defunct voter fraud commission, an anti-immigration hardliner, and a professor whose controversial study was used by the White House to justify President Trump’s false claim that “millions” voted illegally in 2016.

. . .

Von Spakovsky is a fellow at the conservative Heritage Foundation, and, like Kobach, has been a leader of the campaign to exaggerate the threat of voter fraud.

. . .

Camarota is the research director at the far-right Center for Immigration Studies, which has been designated a hate group by the Southern Poverty Law Center.

. . .

[James] Richman’s work has attracted widespread scrutiny in the past. An op-ed he wrote for the Washington Post claiming that non-citizen voting may have been responsible for swinging North Carolina to Barack Obama in 2008 earned threeseparate rebuttals in the Post alone.

The expert testimony will be presented within the context of Judge Robinson’s pre-trial orders. She told the parties before trial that she will apply an exacting standard for proving that the number of noncitizens registering is substantial:

[U]nder applicable Supreme Court and Tenth Circuit authority, Defendant’s showing must go beyond the number of registrations that would impact the outcome of an election in order to be substantial. The Court will view the number of noncitizen registrations in relation to the number of registered voters in Kansas as of January 1, 2013, and will otherwise be guided by this legal authority when determining whether Defendant’s evidence meets the threshold of “substantial.”

There were 1,762,330 Kansans registered to vote as of January 1, 2013. For the ACLU, the battle at trial will be to prove that the number of noncitizens who successfully registered without the documentary proof of citizenship requirement is small compared to 1,762,330.

Other states are watching to see how the trial plays out. A final decision in favor of the ACLU and their clients that permanently enjoins the Kansas documentation requirement should keep other states from adopting their own version of the Kansas statute. If Kansas prevails, look for states that already take steps to suppress voter registration and voting to follow Kansas’ yellow brick road.