The last few days have been a complete disaster for Kansas Secretary of State Kris Kobach, the defendant in the trial of Fish vs Kobach. Not only did he struggle to provide much evidence that his restrictive voter registration laws were preventing significant voter fraud, but his defence team was repeatedly scolded by the judge for struggling with legal basics.
Kris Kobach’s fool for a client
In 2016 the American Civil Liberties Union (ACLU) successfully blocked a 2013 Kansas law which requires people to produce citizenship documents, like a birth certificate or U.S. passport, in order to register to vote. In a trial that is expected to determine a final resolution on the case (barring appeal), the ACLU is representing both the League of Women Voters and individual Kansans who had been denied voter registration. The suit is against Kris Kobach in his official capacity as Secretary of State, but unexpectedly Kobach has decided to represent himself.
The legal adage that “a man who is his own lawyer has a fool for his client” is on everyone’s mind. Whether Kobach is deliberately ignoring this maxim or doing his best to prove it correct is hard to determine.
Appearing before Judge Julie Robinson in a Kansas City, Kansas courtroom, the case will determine whether the “National Voter Registration Act” is to be struck down permanently, or if the 2016 injunction should be lifted.
So far Judge Robinson is getting very annoyed with Kobach and the amateurish defence he has assembled.
“This is evidence 101”
Although Judge Robinson has allowed Kobach and his supporting team some latitude, she was repeatedly pushed beyond her limits.
Yesterday a dispute broke out over the number of people who were on a list of “suspended” voters for filing incomplete applications. The list that had been entered into evidence before this trial was from the original 2016 hearing. Kobach and his team attempted to introduce updated figures without providing the prosecution time to see them in advance – a basic rule of evidence.
Kobach had previously tried to supply the ACLU with updated figures at 10:45 pm the night before the trial began, but Judge Robinson overruled this citing insufficient notice.
But Kobach was not deterred. While being questioned by a member of Kobach’s team, the Kansas director of elections, Bryan Caskey, began to refer to updated figures into his testimony.
Judge Robinson grew visibly angry at this attempt to introduce revised figures into evidence and took Kobach to task. Kobach argued that the data was constantly changing, but then admitted that he had not bothered to update the ACLU with new figures for two years.
“That’s not how trials are conducted,” Judge Robinson said.
This embarrassment over numbers followed a series of legal gaffes by Kobach and his team on Wednesday, when Judge Robinson became so frustrated she felt the need to explain the rules for introducing evidence to the defendant. She reffered to it as “Evidence 101.”
You’re 127 in 1.8 million!
Perhaps most embarrassing for Kris Kobach, however, is the threadbare evidence of any detectable threat to democracy from noncitizen voters.
Despite Kobach’s estimate of 18,000 illegally registered voters on the Kansas rolls, the ACLU have cited evidence that only 127 noncitizens, out of a total of 1.8 million, have tried to register since 2000.
When compared to the estimated 30,000 Kansans who have been unable to register because of the more stringent conditions (typically lacking a birth certificate or passport), ACLU attorney Dale Ho said, “Enforcing this law is like taking a bazooka to a fly.”
The ACLU further undermined Kris Kobach’s claims when they examined the reports sent to Kobach by Sedgwick County elections commissioner Tabitha Lehman. She had reported 38 violations to Kobach, but upon closer examination only five of these were examples of noncitizens voting. These five individuals had voted on a total of twelve occasions.
Those twelve illegal votes made up roughly 0.0009% of the total 1.3 million votes cast in Sedgwick County over the same reporting period.
Failure looms ahead
In order to prevail in court, Kris Kobach will have to establish the following:
1) there are a substantial number of noncitizens registering to vote in Kansas, and
2) that nothing less burdensome than the requirements he has imposed would suffice to fix the problem.
It is early days, but so far he is set to fail on both counts. Some might argue that Kobach will not be overly concerned, however.
Kris Kobach may be set to win at the ballot box this Fall, whatever the results are coming out of the Kansas City, Kansas courtroom.
Running for the Republican nomination for Kansas Governor in August, if Kobach defeats the ACLU he will be a hero to the anti-immigrant right. If he loses, he can portray himself as a martyr who needs to be sent back to Topeka with more power and authority.
Will he succeed in taking Kansas’ top job? Fortunately for Kobach, the typical voter is much less concerned with following proper legal practice than Judge Robinson.