Kansas Secretary of State Kris Kobach did not prove the need for the state’s vote-suppressing proof of citizenship requirement in the two-week trial that ended on Monday. But then, he never has.
He did manage to exhaust the patience of the federal judge who heard the case. Maybe that’s because he does not seem to have shown a good-faith effort to comply with her past order to treat voters who have not provided proof of citizenship the same as other registered voters until she rules.
"I've had to police this over and over and over again,” U.S. District Judge Julie Robinson, who was appointed by President George W. Bush, told Kobach during a contempt hearing in Kansas City, Kan., on Tuesday. “I made it clear they’re fully registered voters.”
It’s up to Robinson to decide whether to hold him in contempt for not doing anything to let them know that. If pounding on her desk signals a contempt finding is likely, he’s in trouble.
Robinson will also rule on the larger issue of the validity of the law, and whether the thousands of Kansans who’ve tried to register without proof of citizenship can vote this fall.
Kobach, a Republican who has advised President Donald Trump on voter fraud and is running for governor this year, has insisted that millions of illegal votes cost Trump the popular vote in 2016. There is no evidence to back up that claim, either.
He estimates that some 18,000 non-citizens are already registered to vote in Kansas. But he can point to only 129 non-citizens who either registered or tried to register in the last 19 years.
He always calls these cases “the tip of the iceberg,” while Dale Ho, an attorney for the American Civil Liberties Union, calls the sum of the evidence “more of an ice cube.”
To justify the Kansas law, Kobach has to prove that there is “substantial” non-citizen voting.
Kobach argues that because a single vote can change the outcome of an election, even one non-citizen participating in the process should be considered substantial.
Robinson’s repeated warnings to Kobach’s team throughout the course of the trial also raised questions about his lawyering.
“We're not going to have a trial by ambush here,’’ she told him after he tried to introduce evidence that had not been shared with plaintiffs. “That's not how trials are conducted.”
However Robinson rules, Kobach’s supporters will thank him for doing just what he has done to fight the almost entirely imagined scourge of voter fraud.
And at the polls in August, Republican primary voters will get to show whether that’s their priority, too.