Breaking: In Major Decision Rejecting Kris Kobach’s Claims of Massive Voter Fraud, Tenth Circuit Unanimously Holds Kansas’s Documentary Proof of Citizenship Requirement to Register to Vote Violates Constitution and Federal Law

In a major ruling, a 10th Circuit panel (consisting of 2 judges, as a third judge on the panel had passed away), a Tenth Circuit panel has held that a Kansas anti-voting law championed by former Secretary of State Kris Kobach violated both the Constitution’s equal protection clause and was preempted by the federal motor-voter law. The law at issue required those who wished to register to vote in Kansas to provide documentary proof of citizenship—such as a birth certificate or naturalization certificate—in order to register to vote. Until the ACLU secured a preliminary injunction against this law, about 30,000 people had their voter registrations suspended and were not allowed to vote in Kansas elections.

I wrote about the trial in this case (then called Fish v. Kobach and now Fish v. Schwab on appeal) in my book, Election Meltdown. I called the case the most important voting trial of the 21st century so far because it was the chance for those like Kobach who claim that voter fraud is a major problem in the United States to prove that in a court of law under the rules of evidence. As I detail in the book, Kobach’s proof was woefully inadequate and his expert witnesses embarassingly bad. Kobach was later sanctioned for how he ran the trial and for misleading the ACLU about the contents of a document he had given to President Trump.

Kobach had claimed that the amount of noncitizen voting was the tip of the iceberg, but the trial court, after an extensive trial where Kobach was given every chance to prove his case, as no more than “an icicle, largely created by confusion and administrative error.”

Today’s 10th circuit opinion agreed that preventing voter fraud is a compelling interest, but that Kansas could not prove its law was necessary to prevent such fraud:

To start, the district court found essentially no evidence that the integrity of Kansas’s electoral process had been threatened, that the registration of ineligible voters had caused voter rolls to be inaccurate, or that voter fraud had occurred. In particular, it found that, “at most, 67 noncitizens registered or attempted to register in Kansas over the last 19 years.” Aplt.’s App., Vol. 47, at 11519. Of these, “[a]t most, 39 noncitizens have found their way onto the Kansas voter rolls in the last 19 years.” Id. at 11520. The Secretary does not argue that these factual findings are clearly erroneous. Thus we are left with this incredibly slight evidence that Kansas’s interest in counting only the votes of eligible voters is under threat. Indeed, even as to those 39 noncitizens who appear on the Kansas voter rolls, the district court effectively found that “administrative anomalies” could account for the presence of many—or perhaps even most—of them there.Id.

Supporting this determination is the fact that Kansas’s voter-registration database included 100 individuals with purported birth dates in the 19th century and 400 individuals with purported birth dates after their date of voter registration. And so it is quite likely that much of this evidence of noncitizen registration is explained by administrative error.

The Secretary also presented the district court with out-of-state evidence about election fraud and noncitizen registration. But the district court concluded that, “looking beyond Kansas, [the Secretary’s] evidence of noncitizen registration at trial was weak.” Id. at 11519. It explained at length why it excluded large portions of the Secretary’s expert testimony and found much of the remaining testimony unpersuasive. Id. (explaining that one of the Secretary’s experts was “credibly dismantled” by the architect of the survey upon which the expert had relied and that the court “d[id] not fully credit” a second expert’s testimony “given its inclusion of misleading and false assertions”). We have no doubt that inaccurate voter registrations exist in our country, see, e.g., Husted v. A. Philip Randolph Inst., — U.S. —-, 138 S. Ct. 1833, 1838 (2018) (“It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate.”), but the Secretary fails to connect this generalized information to the DPOC requirement at issue here or to argue that the district court clearly erred in finding that “the trial evidence did not demonstrate the largescale problem urged by [the Secretary].” Aplt.’s App., Vol. 47, at 11520. In light of the significant burden on the right to vote, we thus do not rely on the Secretary’s out-of-state evidence of voter-fraud and nonvoter registration.

I do not know if Kansas will seek en banc review or cert. before the Supreme Court. This law was Kobach’s baby and he’s no longer in office. This would be a terrible record to take up to try to get a reversal because Kobach litigated this case so poorly.

Make no mistake–this is a huge victory. As the 10th circuit noted, unlike voter identification cases where it sometimes has been hard for plaintiffs to prove that the law burdens most voters, this law literally disenfranchised tens of thousands of people. “These factual findings create a fundamental distinction between this case and Crawford: based on an extensive record, the district court here concluded that the Kansas Secretary of State actually denied approximately thirty thousand would-be voters’ registration applications in his implementation of the DPOC requirement, while, in Crawford, the scant evidence before the Court left it with the unenviable task of attempting to estimate the magnitude of the burden on voting rights, largely from untested extra-record sources.”

This is a huge win for voters, and it clears away a law that disenfranchised thousands but prevented no appreciable amount of voter fraud.

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