Does simply swearing to the fact — at risk of perjury, prison, fines and deportation — protect democracy from non-Americans subverting an election?
Or are cheaters common enough that only documents — say a birth certificate or a passport — go far enough to protect the integrity of the ballot box?
Those were the issues debated during a trial held this past week in Federal court in Kansas City. The American Civil Liberties Union representing the League of Women Voters — a nonpartisan, progressive civic engagement group— and several Kansans who were blocked from voting, took Kansas Secretary of State Kris Kobach to court.
Since 2013, Kobach’s Secure and Fair Elections, or SAFE, law has required Kansans who want to vote to back up their assertion of American citizenship with papers.
Opponents of Kobach’s law say it disenfranchises people who lack such documents — especially the elderly, people living in poverty and younger voters, such as college students who are far from home without their birth certificates.
This week’s trial gives ACLU a chance to scale back Kobach’s law by leaning on the 1993 National Voter Registration Act — often called the Motor Voter Act. That law says swearing your citizenship under penalty of perjury is sufficient for registration. Liars risk prison, fines and deportation.
If the organization succeeds, Judge Julie Robinson of the US District Court for the District of Kansas will rule voter fraud isn’t common enough to warrant Kobach’s tougher registration laws and block the use of SAFE Act proof of citizenship requirements when it comes to anyone registering through the DMV process created by that 1993 law.
That motor-voter process, which boosted voter registration nationally, allows streamlined registration while getting or renewing a driver’s license. One-third of Americans who register to vote use the DMV process. In Kansas, the ACLU says, that figure tops 40%.
One of Several Cases
Kobach already faces other roadblocks to implementing his SAFE law in full.Until Robinson rules, a court has barred Kobach from requiring birth certificates or other such documents from DMV voters. Kobach is already blocked by a separate federal lawsuit — from making that demand of voters who register using a federal paper application.
In addition, a state court ruling has stopped Kobach from circumventing the previous federal rulings, by only allowing individuals who register at the DMV or on the federal form to vote just in federal elections and not state or local elections.
An appeals court has already set the standard for the case and concluded Kobach needs to prove much higher numbers of non-citizens registering than he has done so far. Otherwise he can’t block tens of thousands of voter applications because a small number might not be Americans.
During the trail, Kobach has attempted to prove his oft-made and much-challenged assertions that voter fraud isn’t just a risk, but a real and widespread problem. Kobach’s briefs indicate at least 43 suspected non-citizens registered in Kansas since 2000, and 11 voted. Kansas has about 1.8 million people on its voter rolls.
If Kobach convinces Robinson with his evidence, he will then also have to prove that the only way to prevent the illegal voting is by requiring more documents from people — instead of, using a Department of Homeland Security database to check citizenship status like a few other states are doing. Kobach argues logistical hurdles prevent him from doing that.
National Attention
In addition, if Kobach convinces Robinson, the case could have national implications with other state’s ready to follow suit, implementing stronger voter registration requirements. Already, Arizona, Georgia and Alabama have laws similar to the one in Kansas, though the latter two aren’t currently implementing theirs and Arizona’s law only requires individuals to provide a driver’s license. The case is drawing broader attention because of Kobach’s national role in promoting the idea that immigrants game the American electoral system.
Kobach’s statements have made national headlines, especially after he began talking to President Donald Trump about overhauling federal election law and backed his assertion that millions of illegal voters may have cost him the popular vote to Hillary Clinton. A Republican vying to become Kansas’ next governor, Kobach also led Trump’s now-defunct election integrity commission.
Expert Testimony
Dale Ho, who’s litigating the Kansas case for the ACLU, calls Kobach’s demands for copies of birth certificates or other documents out of proportion to reality.
“Enforcing this law is like taking a bazooka to a fly,” attorney Dale Ho said, “and the collateral damage in this case has been thousands of Kansas voters.”
During the trial, Kobach’s team and the ACLU sparred over the very meaning of “voter fraud.”
The ACLU put Rutgers University professor Lorraine Minnite on the stand. She said “fraud” involves knowingly doing something illegal — a definition that she said aligns with criminal law.
But that would exclude some non-citizens that Kobach has uncovered in cases that involved Department of Motor Vehicle employees registering individuals even after they checked on their form that they were not citizens.
Kobach called Hans von Spakovsky to the stand to challenge some of what Minnite had said. He’s a senior fellow at the conservative Heritage Foundation and a former member of the Federal Election Commission.
When non-citizens end up on the rolls, he said it defrauds legitimate voters.
He argued that intent doesn’t matter with voter fraud. When non-citizens end up on the rolls, he said, it defrauds legitimate voters by undermining election integrity.
That seemed to catch the judge, Republican appointee Julie Robinson, off guard.
If a law blocks thousands of legitimate voters from registering to vote, the judge wondered, “would that not also be defrauding the electoral process?”