A federal trial that starts Tuesday in Kansas City, Kan., will determine whether thousands of potential Kansas voters can cast ballots this November when the state chooses a new governor.
And the lead attorney who will be fighting to preserve the law that could block those Kansans from voting is a man who hopes to be on the ballot: Kansas Secretary of State Kris Kobach, a Republican candidate for governor and the architect of the state’s proof of citizenship law.
“It’s kind of unusual for the person who is trying to set the rules of the election to also be running in that election. Some might say there’s something of a conflict of interest there,” said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, who will be squaring off in court against Kobach.
The law, which requires prospective voters to provide a copy of their birth certificate or passport, has been the subject of years of litigation. Supporters say it prevents non-citizens from voting, but opponents say it actually makes it more difficult for rightful voters to register.
A federal judge blocked the law from being fully enforced in the 2016 election; this trial will determine whether it will be in effect in 2018 and beyond.
Between 16,000 and 22,000 potential voters could be affected by the judge’s eventual ruling in the case, which focuses on whether Kobach can require people who register at the Division of Vehicles to provide such documents. The ACLU argues he lacks the authority under the National Voter Registration Act, commonly known as the motor voter law.
“The stakes are very high,” Ho said. “Our clients were disenfranchised in the 2014 election. They were able to vote in the 2016 because of the preliminary ruling in this case. If that ruling isn’t made permanent, they very well could lose their ability to vote in November.”
Kobach, who crafted the law and leads the office that enforces it, will serve as his own attorney in court rather than rely on the state’s attorney general, a move that is typical for Kobach but rare for state officials.
Kobach’s office would not comment ahead of Tuesday’s opening arguments. He has previous rejected the notion that his policies had made it more difficult to vote.
"After our proof of citizenship law and photo ID law went into effect, Kansas voter participation was better from year to year than participation in surrounding states,” Kobach said in an interview last month. "There has been no negative effect on turnout. Period.”
Kelly Arnold, the state Republican chair who is seeking to succeed Kobach as secretary of state, said he supports keeping the law intact.
“I think it’s important that we make sure that only those people who are eligible to vote can vote," Arnold said. "It’s added another step to the process, but it’s not too burdensome that it prohibits somebody.”
The case’s political stakes are heightened both because of Kobach’s status as a candidate for governor and because of the fact that President Donald Trump has repeatedly sought his counsel on voter fraud.
Former Gov. Kathleen Sebelius, a Democrat, said in an interview Monday that she finds it "horrifying that we have in this state the leader of the effort to restrict and disenfranchise voters."
"We are a state of inclusiveness and involvement and I think that the efforts of Kris Kobach, not just here in Kansas but around in the country, have moved in the exact opposite direction … all under the banner of rooting out voter fraud," she said.
Ho noted that Trump began making unsubstantiated claims that millions of illegal votes cost him the popular vote in 2016 after meeting with Kobach, who had presented him with a plan to make changes to the federal voter law.
“He’s the chief purveyor of falsehoods about voter fraud … and has had the ear of the president,” Ho said.
Trump last year appointed Kobach to help lead a presidential commission on the issue, but it was disbanded in January.
Ho said Kobach’s own data show very few non-citizens have registered to vote and fewer have voted compared to the number of rightful voters potentially blocked from voting by the law. Most of these cases, Ho said, are the result of administrative error rather than any intent to commit voter fraud.
He said there’s four times as many people on the Kansas voter rolls whose registration dates precede their birth date, which can be chalked up to administrative error, than the total number of non-citizens.
“But we don’t talk about a crisis of the unborn registering to vote,” Ho said.