Court Fines SOS Kobach $1000 for Misleading Court on NVRA Documents, Allows ACLU to Depose Kobach

The 24-page order and opinion of the magistrate judge could be appealed.  The underlying document—Kobach’s advice to Trump as to how to make it harder for people to register to vote by changing the federal National Voter Registration Act (NVRA)—remains under seal, but, as Josh Gerstein explains, “Despite the ruling, the memo Kobach took into the meeting with Trump may well wind up in the public domain eventually. O’Hara suggested that if one of parties files the memo in court as part of formal pleadings in the case, it is likely to be made public.”

The magistrate judge also gave a glimpse as to what the document under seal actually says:

In response to the motion, defendant made patently misleading representations to the court about the documents, which at the time had not been produced to either the court or plaintiffs, such that the court was required to take defendant at his word. For example, in discussing the text of the draft amendment, defendant stated, “that text does not propose to ‘amend or alter’ an ‘eligibility-assessment procedures [sic] mandated by the NVRA.’” A review of the draft amendment, however, indicates that the text proposed amending the NVRA’s provisions governing the type of information a state could require voter-registration applicants provide to enable the state to assess the applicant’s eligibility.

In another example, defendant’s response brief states,

Plaintiffs theorize that ‘[A]ny alternative methods proposed by Defendant to alter the assessment of voter eligibility under the NVRA go directly to the second prong of the Tenth Circuit’s analysis.’ Pls. Memo. at 7. Plaintiffs suppose that, ‘efforts by Defendant to seek alternative means of assessing voter qualifications by amending the NVRA would suggest that a DPOC requirement is not the least restrictive method of verifying eligibility.’ Pls. Memo. at 7. First, had Plaintiffs actually sought the documents that they now claim they are seeking, Defendant would have responded that no such documents exist.

This paragraph gives the strong impression that neither of the two at-issue documents relate to proposals by defendant to amend the NVRA’s eligibility-assessment provisions. Upon in camera review of the documents, the undersigned learned this is clearly not the case.

The judge granted the right to depose Kobach rather than use written interrogatories because the judge feared more word games from Kobach. Indeed, the judge will personally preside over the 60 minute deposition on July 5 to rule on objections immediately. The deposition’s contents will, at least for now, be under seal.

(Kobach may appeal any or all of this from the magistrate judge to the district court judge.)

And, yeah, Kobach is the vice chair of President Trump’s “Election Integrity” commission.

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