Judge rules disenfranchised voters outweigh proof-of-citizenship requirement

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A federal judge on Monday struck down Kansas’ proof-of-citizenship requirement for registering voters, finding the potential for disenfranchising voters was more compelling than negligible evidence of voter fraud.

U.S. District Judge Julie Robinson handed down a 118-page ruling on Monday afternoon that rejected Secretary of State Kris Kobach’s five-year effort to preserve a law that has been a hallmark in his battle to crack down on illegal immigration.

“The court finds that the burden imposed on Kansans by this law outweighs the state’s interest in preventing noncitizen voter fraud, keeping accurate voter rolls,
and maintaining confidence in elections,” Robinson wrote.

“The burden is not just on a ‘few’ voters,” she wrote,  “but on tens of  thousands of voters, many of whom were disenfranchised in 2014.”

The judge also sanctioned Kobach for not following the rules of federal procedure, ordering the former law professor to attend continuing education classes. Kobach’s office said in a statement that the ruling would be appealed.

“Judge Robinson is the first judge in the country to come to the extreme conclusion that requiring a voter to prove his citizenship is unconstitutional. Her conclusion is incorrect, and it is inconsistent with precedents of the U.S. Supreme Court.”

Throughout her opinion, Robinson expressed deep skepticism about claims of rampant voter fraud stemming from noncitizens registering to vote while many thousands of Kansas were not able to register to vote.

Evidence revealed that almost 12 percent of all voter registration applications, or 30,732, submitted since the law started 2013 were invalidated because of the citizenship requirement. They were either canceled or placed on a suspended list.

Brian Caskey, director of elections for the secretary of state, said he had uncovered 129 instances where noncitizens either registered or tried to register to vote.

Robinson dismissed that claim, saying that documentary evidence didn’t support Caskey’s  testimony at trial. She said records from the state’s voter database revealed that many of those cases were the result of false positive matches, confusion or administrative error.

Caskey testified that the secretary of state’s office had received additional unsubstantiated reports of noncitizen registration from members of the public and county election offices. However, Caskey could not identify any specific instance of noncitizen registration.

When looking at the 129 cases cited as examples of noncitizen registration since 1999, the court said it’s closer to 67 when the records are examined more closely.

Of those 67, only 39 registered to vote and records show that several of those resulted from errors by state employees or applicant confusion. “They do not (indicate) evidence iof ntentional fraud,” she wrote.

With only 39 confirmed cases of a noncitizens registering from 1999 to 2013 before the citizenship requirement started, Robinson said she could not find “empirical evidence that a substantial number of noncitizens” successfully registered to vote.

She pointed out that the 39 cases make up only 0.002 percent of all Kansas registered voters as Jan. 1, 2013. If it’s assumed there were 67 cases, that’s 0.004 percent.

Of the estimated 115,500 adult noncitizens in Kansas, 0.06 percent have successfully registered or attempted to register to vote since 1999, Robinson found.

“The court finds none of these numbers are substantial when compared to the total number of  registered voters, the total number of noncitizens in Kansas, or the number of applicants on the suspense/cancellation list as of March 2016.”

Robinson rejected a couple of Kobach’s experts, including Hans von Spakovsky, a senior legal fellow at the Heritage Foundation and former counsel to the assistant attorney general for civil rights at the U.S. Justice Department.

She gave “little weight”  to von Spakovsky’s opinion about noncitizen voting because it was “premised on several misleading and unsupported examples of noncitizen voter registration, mostly outside the state of Kansas.”

“His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the court that Mr. von Spakovsky testified as an advocate and not as an objective expert witness.”

The court even criticized Kobach for not using his power of as secretary of state to prosecute noncitizens for registering to vote despite identifying 129 cases of noncitizen voter registration.

No criminal complaints have been brought against a noncitizen for registering to vote, she said. Just one complaint was brought against someone who voted while being a noncitizen.

“The evidence at trial demonstrates that many of the 129 cited instances of noncitizen registration were mistakes or the result of administrative error, which may not be prosecutable and which may undermine the deterrent effect of future prosecutions.”

She added,  “Given that Defendant has not meaningfully sought to utilize criminal prosecutions, at least when he detects intentional cases of noncitizen registration,
he has failed to establish that nothing less than (proof of citizenship) is sufficient to address the problem of noncitizen registration.”

To win his case, Kobach had to show that the National Voter Registration Act’s requirements for registering were insufficient for determining voter eligibility, something the court found that he failed to do.

The federal law only required the minimum amount of information necessary to prevent duplicated voter registrations and enable the state to assess the eligibility of the prospective Kansas voters.

Kobach also then had to show that nothing less than the proof-of-citizenship requirements was sufficient for meeting those responsibilities, something the lack of voter-fraud prosecutions demonstrated.

Robinson was highly critical of Kobach’s legal team throughout the case, finding him in contempt of court for not following her instructions and repeatedly rebuking him for failing to disclose evidence properly or to supplement discovery.

She ordered Kobach, who tried the case himself, to attend six hours of continuing legal education on the rules of civil procedure and evidence.

The coursework must be completed in addition to any other continuing education classes required by his law license in the 2018-19 reporting year.