In Kansas voter ID trial, a clash of two visions for America
Trial testimony, which wrapped up Monday, shows how policy that plays well in the court of public opinion can face a very different outcome in a court of law.
| Kansas City, Kan.
There were a few things Jo Carolyn French wanted people to know when she took the witness stand at the US District Court in Kansas City last week – among them, that as an Arkansas teenager she picked 300 pounds of cotton a day and as a senior citizen she likes to drive her Ford Focus rocking out to Rod Stewart with her hair flowing in the wind.
Her folksy humor had both sides chuckling in an otherwise tense trial, in which the American Civil Liberties Union (ACLU) is challenging a Kansas law requiring prospective voters to show proof of citizenship.
But Ms. French stopped joking when it came to the main issue: the need to prove you are a United States citizen to vote in the state. She says she was happy, as a new resident of Kansas who had long ago lost track of her birth certificate, to produce a family Bible, a baptismal certificate, and her high school transcript in order to be able to register to vote.
“I was hurt that no one believed me that I was an American citizen,” said French, a white resident of Osage City, Kan., who was called to testify by the defendant, Secretary of State Kris Kobach – whose office helped her prove her citizenship. “But that is the one thing that Kansas has that every state should have – [requiring] proof that you belong here.”
Currently, Arizona is the only other state to require proof of citizenship to register to vote – a requirement that supporters say is necessary to protect the integrity of American elections and which critics portray as a racist attempt to disenfranchise citizens who are poor, less educated, and come from minority or immigrant backgrounds.
At its heart, the Kansas trial represents the clash of two opposing visions for the United States: one that says it is intent on preserving the Constitution and, some would add, white Christian America. And another that says it is trying to help the Constitution live up to its stated ideals by more fully embracing all Americans and preventing tools traditionally used to keep people of color from voting during the first half of the 20th century from making a return in the 21st.
Trial testimony, which wrapped up Monday, has garnered national attention. On its face, the idea of voter ID and proof of citizenship laws strike some Americans, especially on the right, as common sense protections. People on the left say that ignores the history of how such laws were used during the Jim Crow era. The trial, which Mr. Kobach appears likely to lose, also shows how policy that plays well in the court of public opinion can face a very different outcome in a court of law.
“Secretary Kobach is a controversial lightning rod because he champions some controversial policies,” says Justin Levitt, an election law professor at Loyola Law School in Los Angeles. “He takes issues that many people have reasonable concerns about, and tends to runs to the extreme on them.”
‘Mass denial of a fundamental constitutional right’
The Kansas legislature passed the Secure and Fair Elections (SAFE) law in 2011 – by 111 to 11 in the House and 36 to 3 in the Senate. “It is my hope that other states will enact the Kansas model,” said Kobach at the time. “Voter fraud is a national problem, and Kansas has offered a solution that will protect every state that adopts it.”
A number of states have added some form of voter ID requirements in recent years, including neighboring Missouri. Secretary of State Jay Ashcroft says the measures have not only increased voter confidence but also enabled some people to vote who wouldn’t have been able to before the new law took effect in June 1, 2017.
“As a politician it’s really easy to think a good election is whether your side wins or loses, but it’s really about whether the voting public makes the decision,” he says in a phone interview.
While most states that have enacted new voting laws have focused on proving identity, rather than citizenship, the two are close cousins, says Ethan Corson, executive director of the Kansas Democratic Party and a lawyer who challenged the Wisconsin voter ID law. “I think this is very much the new Jim Crow – this is a deliberate attempt to exclude black, Latino, poor voters,” says Mr. Corson, who describes it as a GOP effort to thwart voters who don’t generally support Republicans.
Joy Springfield, an African-American attorney in Kansas City attending the trial says she feels like Kansas’s approach to voter ID is an attempt to roll back the civil rights gains since Selma.
A key focus of the trial against the law has been whether the incidence of noncitizen voting was high enough to justify the requirement to produce documentation such as a birth certificate or passport.
The state of Kansas, which has 1.8 million registered voters, has found 129 incidents of noncitizens registering or attempting to register since 2000. Of those, 11 voted. The ACLU, meanwhile, estimates that more than 30,000 citizens were unable to vote due to the law, which was implemented in 2013.
Among them was Steven Wayne Fish, a plaintiff in the case, a white resident who got his Kansas driver’s license more than 20 years ago. When renewing it in 2014, he decided to register to vote for the first time over concern about school budgets. When he showed up to vote, he was told he was not in fact registered because he had not shown proof of citizenship. He has lost track of his birth certificate and doesn’t have a passport.
In October 2016, the Tenth Circuit issued a preliminary injunction requiring Kobach to suspend implementation of the law pending the trial outcome, ruling that, “There is no contest between the mass denial of a fundamental constitutional right and the modest administrative burdens to be borne by Secretary Kobach’s office and other state and local offices involved in elections.”
Kobach: ‘The ACLU’s worst nightmare’
On the left and right, Kobach – a champion debater with degrees from Harvard, Oxford, and Yale Law School – is recognized as a formidable force on illegal immigration.
Mother Jones called him the legal mastermind behind a wave of anti-immigration laws. Mitt Romney referred to him as a true leader. Others have held him up as an American hero.
Kobach calls himself “the ACLU’s worst nightmare.”
As an ambitious young Republican, Kobach worked in John Ashcroft’s Justice Department during George W. Bush’s presidency. Fifteen years later, he drafted a plan for Trump, obtained in court by the ACLU, advocated for “Draft[ing] Amendments to the National Voter Registration Law to promote proof-of-citizenship documents” – a move that would have expanded the scope of Kobach’s mission well beyond Kansas.
But he did have an impact on the Trump administration, persuading the president that millions of illegal voters had lost him the popular vote. He served as the vice chair of the president’s commission on electoral integrity, which was disbanded in January amid numerous lawsuits and lack of cooperation from states.
Citing citizens’ right to privacy, even Mississippi’s Republican secretary of State refused to comply with the commission’s requests for voter data, remarking, “They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from.”
Now Kobach is running for governor.
“Those who have ears up are definitely concerned that a person with such seemingly outright racist views would be elected governor,” says Beth Seberger, a former ESL teacher for refugees who attended nearly every day of the trial.
But others see Kobach as a strong defender of American ideals.
“I believe in our Constitution, I believe in the rule of law, and I believe that citizens of the United States should be able to vote,” says Renee Slinkard, a supporter of the Kansas voter ID law who says she recently helped a green-card holder from Vietnam pass his US citizenship test. “I do not believe that someone who ... has not come over here the legal way should be voting.
Defense picked apart by prosecution
Kobach’s defense in the trial, which began March 6, relied on witnesses including GOP pollster Pat McFerron, political scientist Jesse Richman of Virginia’s Old Dominion University, and Steven Camarota of the Center for Immigration Studies (CIS) in Washington.
By analyzing Census data, surveys, polls, and voting records, they aimed to demonstrate two main points: 1) that while the number of known instances of noncitizens registering or attempting to register to vote is 129, when those instances are taken as percentages of the total population, it can be extrapolated that there are as many as 18,000 noncitizens who have attempted to register in Kansas and 2) that the 2011 SAFE act did not substantially diminish voter turnout in the 2014 elections.
The plaintiffs’ attorneys picked apart those witnesses’ credentials and data analysis, arguing that they had not controlled for relevant variables and thus had obtained skewed results. They also argued that more than 30,000 citizens had been unfairly prevented from registering to vote.
“While we certainly don’t condone people who aren’t eligible voting, when you’re talking about many multiples of that of people who are eligible to vote who aren’t getting to the ballot, there’s no question where the balance falls,” says Neil Steiner, an attorney with the New York firm Dechert LLP who is working pro bono on this trial alongside the ACLU, as he did on a case challenging the constitutionality of Wisconsin’s voter ID law.
But for supporters of the Kansas statute, a law is a law – and should never be broken.
“Cite another law for me [where the attitude is], ‘Well, it’s OK, because there are only a few people breaking it,’ ” says Joe Kessinger, a corporate finance consultant and GOP voter from the Kansas City area who came to observe the final day of testimony. He argues that such a standard would never be applied to bank robbery or Russian hacking into the electoral system.
The proceedings were often characterized by a tone of disdain – with the defense showing persistent frustration with the plaintiffs’ line of questioning, which sought to portray witnesses as biased against immigrants and minority citizens. At one point, Dr. Camarota of CIS, whose organization came under attack during cross-examination, protested that the Southern Poverty Law Center – which classifies CIS as a hate group and was referenced by the prosecution – routinely targets people it disagrees with and “tries to taint them with some sort of racist brush.”
“Plaintiffs contend that the defense position is not only constitutionally problematic, but also that it’s racist,” says Kansas attorney Bradley Schlozman, who filed an amicus brief early in the case and previously served in the civil rights division of the Bush administration’s Justice Department. A DOJ investigation in 2009 found that he illegally hired attorneys based on political credentials and made false statements during sworn testimony to Congress. That pattern was later reversed by the Obama administration. “They’re just trying to demonize the states and individuals who are promulgating voter integrity measures.” (Editor’s note: This paragraph was corrected to clarify that Mr. Schlozman’s statement refers to the plaintiffs’ contention, not his own view.)
Judge Julie Robinson, a Bush appointee and the first African-American woman to preside over a US District court in Kansas, said she would take at least a month before rendering a decision.