KANSAS CITY, Kan. — Dale Ho’s mic drop flourish with a key witness for Kansas Secretary of State Kris Kobach made for one of the most memorable moments in a trial over the state’s voter registration law.
But it wasn’t the first time the American Civil Liberties Union attorney exposed Jesse Richman’s ignorance in recognizing a federal judge, and from Ho’s perspective, it wasn’t Richman’s biggest calamity.
Embarrassed and bitter, Richman’s testimony became a hallmark of the seven-day trial, which ended last week with a coda to determine if Kobach should be held in contempt of court. An army of ACLU attorneys probed the work of Kobach’s expert witnesses to undermine their academic merit while Kobach and his assistants appeared unprepared, inviting harsh words from U.S. District Judge Julie Robinson.
Already, Kobach’s office is working to address its failure to comply with Robinson’s order to send postcards to suspended voters who were given a green light when the judge blocked enforcement of proof of citizenship requirements.
Robinson’s fury intensified during the contempt hearing when Kobach’s election director, Bryan Caskey, admitted Kobach never instructed him to carry out the judge’s order. Kobach told Robinson postcards were being sent before November 2016 elections.
“I honored and trusted what you told me,” Robinson said.
In an interview reflecting on his coups in court, Ho said he encountered a brick wall on the matter with Kobach’s chief legal counsel, Sue Becker. She argued in a conversation before the trial, Ho said, that postcards were unnecessary.
Two days after the contempt hearing, Caskey sent written instruction to county clerks, asking them to comply with the judge’s orders by April 6. At a campaign stop in Topeka, Kobach said his office made painstaking efforts to abide by the judge’s demands.
“You couldn’t come away from that hearing without seeing how Kansas had bent over backward to comply with the judge’s orders,” Kobach said.
Robinson could issue a contempt ruling at any time. She will decide the case after next month’s deadline for filings and said she would be mindful of election season.
Fool me twice
Richman, a political scientist whose surveys became the basis for Kobach’s claims of widespread voter fraud, struggled to explain inconsistencies in his effort to separate anglophone voters from those with foreign-sounding names.
Just hypothetically, Ho wanted to know, would Richman consider “Carlos Murguia” to be a foreign name?
Richman: “Probably.”
Ho: “Probably what?”
Richman: “Probably would code it as foreign.”
Ho: “Are you aware that Carlos Murguia is a United States District Court Judge who sits in this courthouse?”
Richman: “I am not.”
Captivated Twitter observers following #ACLUvKobach erupted in derision: “I just blew coffee out of my nose.” “Savage.” “Inject this straight into my soul.” “I’ve never wanted to hug a stranger as much as I do right now.”
It was a risky move for Ho. Richman could have noticed Murguia’s name as he walked through the courthouse, or he could have remembered the same line of questioning from a pretrial deposition, when Ho used Kansas-raised Sri Srinivasan, a federal appeals court judge, as the example.
Another ACLU attorney, Emily Zhang, gave Ho the idea to switch names. If the jig was up, there would be no harm to ACLU’s case.
“There was some risk associated there,” Ho said, “but it just goes to show how inconsistent and shoddy his methods are.”
This isn’t a trick
ACLU took note of interviews where Kobach suggested illegal immigrants were responsible for swinging the popular vote in favor of Hillary Clinton.
For Ho, it was important to get Richman to concede he couldn’t support Kobach’s claims. The strategy: Play a video of Kobach making a blatantly false assertion, then ask Richman about it point blank.
Richman disagreed with Kobach’s assessment of the 2016 presidential election and said he wasn’t aware of any study that would support Kobach’s claim.
″(Kobach) can get away with these kinds of quick hits, where he’s misrepresenting facts,” Ho said, “but in court, you can’t get away with that.”
Most significant, Ho said, was disclosing how Kobach’s estimate of 18,000 illegal voters in Kansas derived from Richman’s survey of just 37 people with temporary driver’s licenses. Six of the 37 said they attempted to register to vote. The percentage was applied to the total population of noncitizen residents in Kansas without respect to sample size or demographics.
Enter political scientist Eitan Hersh, a rebuttal witness examined by Zhang. Hersh explained a simple search shows none of the six who said they attempted to register were in the state’s voter database. They didn’t actually fill out an application form, let alone cast a vote.
This meant Ho could agree with Kobach, who referred to Richman’s survey in opening arguments as the most reliable indicator of voter fraud in Kansas. Ho said the total number of illegal voters, based on Richman’s work, is zero.
“This isn’t a lawyer trick,” Ho said. “They could have figured it out. They have the voter file. It’s not rocket science. ... My 8-year-old daughter could have figured it out.”
Who’s watching?
ACLU’s legal team gathered for a group photo outside the Robert J. Dole U.S. Courthouse at the conclusion of legal proceedings.
Ho and Zhang were part of a battalion that included four attorneys from the ACLU’s national office, one from the ACLU Foundation of Kansas, two partner attorneys, and various associates.
“All of us were working around the clock,” Ho said.
On the other side, Kobach represented himself with help from Becker and Garrett Roe, his deputy secretary of state. When they weren’t out of line or out of order, they seemed out of depth. From the start, Robinson chided them for trying to submit new evidence in violation of a pretrial deadline. She tutored Roe on the XYZs of cross-examinationand shushed Becker for a “schizophrenic” fit.
ACLU attorneys directed focused, barbed cross-examination. Roe and Becker sometimes struggled to articulate questions or locate documents.
“They were not the most prepared or experienced adversaries I’ve ever encountered,” Ho said.
Launching a four-day, statewide tour at the conclusion of the trial, Kobach said he delivered on his promise to secure Kansas elections. If the ACLU isn’t happy about it, he said, he did something right.
He dismissed the possibility his performance at trial will hurt his chances of becoming the state’s next governor.
“I don’t really think it affects things that much at all,” Kobach said. “The only maybe indirect effect might be that people see I’m defending our proof of citizenship law against the ACLU and are reminded of that fact. But no, I don’t see a direct impact. Some people do follow judicial proceedings fairly closely, but I think most people probably don’t.”