New York Times (Opinion)
By Emily Bazelon
June 20, 2018
In a week when down has seemed up and up appears to be down, a federal-court decision in Kansas protecting the right to vote has arrived as a cool and bracing tonic.
Judge Julie A. Robinson, an appointee of President George H. W. Bush, didn’t do anything fancy in the 188-page opinion she issued on Monday. She just methodically analyzed the evidence that the Kansas secretary of state, Kris Kobach, submitted in a March trial to show that a substantial number of noncitizens have tried to vote or voted in Kansas. Judge Robinson presided over the trial in a case brought by the A.C.L.U.
Mr. Kobach was defending a 2013 Kansas law that required people to prove their citizenship with a document like a birth certificate or a passport when they register to vote. After the 2013 law went into effect, more than 31,000 people, about one in seven, were barred from registering because they didn’t produce the accepted forms of proof of citizenship. Mr. Kobach’s job at the trial was to show that the threat of noncitizen voting was so significant that the Kansas law was necessary to protect the integrity of the state’s elections. His experts estimated the number of registered noncitizens to be in the thousands and opined that they represented a widespread problem.
Judge Robinson found that at most 39 noncitizens successfully registered to vote between 1999 and 2013, when the new law went into effect. “While there is evidence of a small number of noncitizen registrations in Kansas, it is largely explained by administrative error, confusion or mistake,” Judge Robinson concluded, adding that Mr. Kobach “insists that these numbers are ‘just the tip of the iceberg.’ This trial was his opportunity to produce credible evidence of that iceberg, but he failed to do so.”
It’s a good line. In the context of our national truth-telling crisis, the one that follows is even better: “The court will not rely on extrapolated numbers from tiny samples sizes and otherwise flawed data.”
This law was Mr. Kobach’s baby. He’s one of the country’s chief devotees of the claim that the threat of voter fraud by noncitizens or people casting more than one ballot in person justifies restrictive measures that make it harder for Americans to vote. When Mr. Kobach met with Donald Trump after Mr. Trump’s election, photos showed him holding a memo outlining how to take his proof-of-citizenship concept national. He became vice chairman of the Trump administration’s now-defunct election commission, and he’s now running for governor in the Republican primary in Kansas.
At the trial, Mr. Kobach’s key exhibit was a spreadsheet, compiled by two local election officers, that purported to show that dozens of people who lacked citizenship tried to register to vote in a single county, Sedgwick, over a period of 18 years. On cross-examination by Dale Ho, the lawyer for the A.C.L.U., one of those officials conceded that the number who actually registered was 13. Most of them, along with others on the spreadsheet, ended up on the list because of administrative errors when they applied for driver’s licenses rather than anything they’d done intentionally. (One wrote on the application: “Please put in the record I am not a citizen. I cannot vote.”) Between 1999 and 2017, only five actually voted.
One of Mr. Kobach’s witnesses, Hans von Spakovsky, is manager of the Heritage Foundation’s Election Law Reform Initiative and a longtime Kobach ally. Mr. von Spakovsky contributed to Mr. Kobach’s 2010 campaign and wrote a fund-raising email for him, though Judge Robinson noted that he didn’t disclose these ties in the report he submitted to the court. “Kansas clearly has had a problem with noncitizens registering to vote,” Mr. von Spakovsky testified, and then on cross-examination was forced to admit that the entire basis for his claim was the Sedgwick County spreadsheet.
Mr. von Spakovsky also submitted a report claiming that a study by the United States Government Accountability Office found that up to 3 percent of the people called for jury duty from the voter registration rolls in one federal court were noncitizens. But he left out the fact that the G.A.O. study covered eight federal district courts, that four of them reported that not a single noncitizen was called for jury duty and that the remaining three reported rates of less than 1 percent.
“The lack of academic rigor in his report, in conjunction with his clear agenda and misleading statements, render his opinions unpersuasive,” Judge Robinson concluded.
The next witness for Mr. Kobach was Jesse Richman, a political scientist at Old Dominion University and a co-author of a 2014 article in the journal Electoral Studies that Mr. Kobach and President Trump pointed to after the 2016 presidential election to prop up the false claim that millions of illegal votes were cast. (It was Mr. Trump’s excuse for losing the popular vote to Hillary Clinton.) To his credit, Mr. Richman at the time disavowed their interpretations of his work as exaggerated and misleading.
When I reached him over the phone, Mr. Richman said he wasn’t sure that the Kansas law struck the proper balance between the right to vote and the prevention of fraud. But he defended the estimates he produced for Mr. Kobach. Mr. Richman surveyed 37 people with temporary driver’s licenses, which are available only to people with visas, and found that six, or more than 16 percent, said they had tried to register to vote. Extrapolating from this small sample to the whole adult noncitizen population of Kansas, Mr. Richman said it was possible that 18,000 noncitizens have registered or tried to register in Kansas. Mr. Kobach called 18,000 the “best estimate” of noncitizen registration.
On cross-examination, Mr. Ho, the A.C.L.U. lawyer, asked Mr. Richman how many of the six people in his surveys were actually on the Kansas voter rolls. The answer was zero. Judge Robinson called his testimony and report “confusing, inconsistent, and methodologically flawed.”
Mr. Richman also did another survey in which he asked 1,300 people included on the state’s list of suspended voter registrations about their citizenship. Only seven said they were noncitizens. Mr. Richman then factored in demographic characteristics he thought correlated with citizenship status to estimate how many noncitizens were on the overall list of roughly 14,000. One of the factors he included was whether a person’s name sounded foreign.
On cross-examination, Mr. Richman admitted that his determinations of “foreign” were hurried and subjective. People with the last name Lopez, for example, were counted both ways. In perhaps the trial’s most startling moment, Mr. Richman said he would have counted as foreign the name Carlos Murguia — which happened to be the name of a judge on the Kansas Federal District Court.
Over the phone with me, Mr. Richman called the moment “ridiculous” and the fallout from it “painful.” He also said he was disappointed that Mr. Kobach and his team seemed too overwhelmed to put on the best possible case.
But what would that case have been? At this trial, the people in the country who are the most committed to showing that meaningful numbers of noncitizens vote, who have built their careers on that assertion, could not do it. Mr. von Spakovsky, after years of claims to the contrary, admitted on the stand that he knows of no election in which the outcome was determined by noncitizen votes. And Mr. Kobach, a lawyer as well as his state’s top election official, did such a poor job of the basic task of following the rules of evidence that the judge imposed sanctions, ordering him to complete six hours of legal education pertaining to the state or federal rules of procedure or evidence.
Like the Scopes trial of 1925, which sought to drive a stake into the heart of the effort to prevent the teaching of evolution in schools, the case of Fish v. Kobach is intellectually convincing.
But like creationism, the myth of noncitizen voting won’t die. The Republican Party has decided it is better off restricting access to the ballot than working to broaden its support among minority and young voters — the very people that laws like the one in Kansas tend to shut out.
A few days after the trial, Mr. Kobach said that he had encouraged President Trump to add a question about citizenship to the United States census.
Meddling with the census in this way will lead to the undercounting of Latinos and Asian-Americans, according to census officials and lawsuits challenging the citizenship question. That, in turn, will reduce the representation of minorities in Congress, which will mean that fewer Democrats will be elected. When one door closes to Republican efforts to retain political control, another one opens.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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