Rick Hasen, an election law professor at the University of California, Irvine, School of Law said Kansas “never should have even taken the case to the Supreme Court in the first place given Kobach’s utter failure in proving his claims of widespread voter fraud and his inept running of the trial.”
In 2018, after a series of missteps in district court, Kobach was found in contempt and ordered to take six hours of remedial legal training on civil procedure. That gave Schmidt little chance of success when he took over in the case for the appeal.
“The Supreme Court has tolerated a number of laws that make it harder for people to register and vote in the name of preventing voter fraud and giving states the ability to run their elections as they see fit. The Fish case shows there are limits to that,” Hasen said, referencing the ACLU’s client Steven Wayne Fish.
“Disenfranchising tens of thousands of people without proof of fraud goes too far under federal law and the Constitution.”
In a phone call, Kobach rejected the notion that his courtroom performance resulted in the state’s loss at the district court level.
He agreed with Schmidt’s office that the high court’s Monday denial represents the end of the Kansas litigation, but he said that the issue of proof of citizenship could still come before the court in the future if a state outside of the 10th Circuit enacts a similar law and it results in a contradictory ruling.
“There’s nothing more the (Kansas) attorney general’s office can do on the case, but I think the issue is far from over. There were a number of states looking at this in the past few years. I think the 2020 presidential election has raised the focus on election security,” Kobach said.
“The rest of the country has a wide open path ahead of it if more states want to pursue proof of citizenship,” Kobach said, contending that the ruling only affects Kansas and the five other states covered by the 10th Circuit.
Kobach said that he was involved in Texas’ failed attempt to overturn the presidential election results in four states, serving as an adviser on Texas’ briefs. The court rejected the lawsuit Friday evening.
Kobach said he would not consider Joe Biden to be president-elect until Congress votes to accept the Electoral College results on January 6, but he acknowledged that few opportunities remain for President Donald Trump to contest the election results after Friday’s decision.