Week 2: Daily Developments Of The Kansas Motor-Voter V. Kobach Trial

Mar 13, 2018
Originally published on March 14, 2018 7:59 am

Kansas Secretary of State Kris Kobach is defending Kansas' strict voter registration laws in federal court in a trial that has now entered its second week.

Kobach is facing lawyers from the American Civil Liberties Union to test whether voter fraud is common enough to warrant the strict registration rules in Kansas, or whether doing so squelches the votes of tens of thousands to protect against extraordinarily rare cases of foreigners casting ballots.

A day-by-day recap of Week 1 can be found here. Below are daily developments from Week 2, with the most recent information first (and if you want to follow on Twitter, @Celia_LJ is filing moment-by-moment):


Tuesday, March 13

*Note: The trial wrapped up for the week late Tuesday. It will resume next Monday.

On Tuesday, Richman showed more statistical calculations meant to estimate how many non-citizens are on Kansas voter rolls. One such analysis suggested a range of between 10,000 and 60,000 people.

The ACLU continued to attack the methods and credibility of Kobach’s witness, saying 200 political scientists had signed an open letter critical of his work. (Richman responds to the open letter here.)

They pressed him on how he coded a survey of people whose voter applications had been blocked, which in part included labeling names as foreign if Richman and an assistant didn’t think they sounded like English-speaking people.

Richman replied that wasn’t the only criterion for marking certain names.

An ACLU lawyer asked him whether he would label “Carlos Murguia” foreign, and when Richman replied he probably would, revealed Murguia is a federal judge in that very courthouse.

The ACLU also showed a 2016 video in which Kobach, while speaking with reporters, backs President Trump’s claims that he lost the popular vote to Hillary Clinton because of millions of illegally cast ballots.

Richman agreed with an ACLU lawyer that his research hasn’t shown this to be true and he doesn’t know of any research that has.

Later, the ACLU called Tufts University political science professor Eitan Hersh, who also analyzed Kansas voter registration records.

He questioned the conclusion that there’s a widespread problem of non-citizen registration. Kansas records show 400 people with birth dates that indicate they’ve been registered to vote since before they were born. Yet he said no one is arguing there’s a problem with parents registering their children before they’re born. Instead, he said, there’s an assumption those are clerical errors.

Kobach’s team pushed back, questioning inconsistencies between Hersh’s analysis and the state’s own work. Hersh attributed those to Kansas not sending him thousands of voter records he needed for his analysis.

The ACLU then called Harvard government professor Stephen Ansolabehere, the developer of a data source Richman draws on for his math. Ansolabehere rejected Richman’s calculations.

“They don’t provide any real statistical evidence" of non-citizen voting, he told the court.

Kobach took issue with his conclusions and sparred with him on nitty-gritty details of probability math.

Monday, March 12

Kobach’s office faced more hurdles to entering evidence — things the legal team hadn’t provided in advance of trial. That included new calculations related to how often non-citizens vote.

Judge Julie Robinson, in apparent consternation, asked Kobach to “please” read evidence and deposition rules that had now come up “ad nauseum.”

“You can't sit down with your expert on the eve of trial and come up with new numbers,” she chided him.

To show the Kansas law hasn’t suppressed voter registration or voter turnout, Kobach’s legal team leaned on Steven Camarota, the director of research at the Center for Immigration Studies, a Washington, D.C., think tank that advocates for more limits on immigration.

Camarota compared the 2010 and 2014 election years — before and after the law took effect — and cited Census Bureau data as supporting Kobach’s case.

“We don’t see evidence based on this data,” he said, that asking would-be voters for birth certificates or other documents proving citizenship impedes them from registering and voting.

That holds true, he said, when you break the data down to look at young people and non-white and white eligible voters. (A previous ACLU witness testified that the Kansas law has disproportionately hindered young voters.)

The ACLU challenged Camarota’s methodology — accusing him of using too little data, producing his expert report on a tight deadline, and failing to consider that voter registration and turnout are difficult to compare across two elections because competitiveness of races and other factors can vary so much.

They pressed him on his political leanings, too, saying the founder of his think tank has been called “the racist architect of the modern anti-immigrant movement” by the civil rights group Southern Poverty Law Center.

The lawyers pointed to Camarota’s blog, asking if he believes non-citizens are more likely to commit crimes than citizens. In a post on the blog, Camarota wrote that immigrants commit a disproportionate number of federal crimes.

“That’s what the data show,” he replied.

The Washington Post has previously written in fact-checking claims related to immigrant crime that data is incomplete “but a range of studies show there is no evidence immigrants commit more crimes than native-born Americans.”

Later in the day, Camarota told the court “the suggestion that the Center is motivated by some kind of racial or ethnic animus is outrageous.”

In the afternoon, Kobach called retiree Jo French, who said that she was born at home in Arkansas and that that state doesn’t have records of her birth. Kobach’s office scheduled a hearing for her in 2016 to make a case in person to high-ranking officials that she is a citizen.

Six people have completed such hearings, which Kobach sees as assurance that all citizens can access the right to vote in Kansas.

French’s testimony repeatedly wandered to other topics, such as the miles on her car and her past experience working for Sears. Her statements appeared at times to support Kobach’s case and at times the ACLU’s position.

“I was hurt that no one believed me that I was an American citizen,” said French, who in the past had registered to vote in Arkansas and Colorado, but “I think every state in the United States should have this type of documentation to eliminate fraud.”

French said Kobach's office told her she could use her family Bible, baptism papers and high school transcript to prove her citizenship. Gathering those wasn’t difficult, she said.

French said she and assistant secretary of state Eric Rucker had become friends and she was happy to testify about her experience at trial to help Kobach’s office because she wants voter fraud to stop.

“I wanted him to look good,” she said.

That prompted apparent concern from the judge, who asked about her friendship with Rucker and whether he or Kobach had spoken to her about voter fraud. French said she had learned about voter fraud and Kobach’s work by watching the news.

In the afternoon, testimony from Old Dominion University’s Jesse Richman devolved quickly into argument. In the course of answering questions from the ACLU and Robinson about his data sources, the political science professor repeatedly interrupted the judge.

“Wait, wait, wait!” the judge called out as the situation heated up and more people in the courtroom began speaking simultaneously. “Especially you,” she added to Richman, instructing him not to talk except when answering questions. “You’re not here to trash the plaintiff. You’re not here to argue with me.”

Convincing the judge that Richman's statistics on non-citizen voter registration are reliable is critical to Kobach's case. The 10th Circuit U.S. Court of Appeals has said he must prove the problem is significant.

Richman offered four possible projections of how many non-citizens are on the rolls. They range from about 1,100 to more than 18,000.

In a brief to the court, Kobach says that shows “the iceberg is substantial” — that he’s only uncovered a small fraction of non-citizens registered to vote.

Richman’s testimony and cross-examination will continue Tuesday.

This post will be updated throughout the trial.


Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KMUW, Kansas Public Radio and KCUR covering health, education and politics. You can reach her on Twitter @Celia_LJ

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