Breaking: Federal District Court Sides with ACLU over SOS Kris Kobach in Proof of Citizenship Voting Case

Given how things went at trial (Kobach got held in contempt at one point—though had the fine paid off with a government credit card), this is no surprise. In addition to injunctive and declaratory relief, “the Court imposes sanctions responsive to Defendant’s repeated and flagrant violations of discovery and disclosure rules.”

This is a complete victory for the ACLU in a careful, detailed opinion by a Republican-appointed judge that is unlikely to be overturned on appeal. A well deserved loss for Kris Kobach.

Here is the 118-page opinion.

The judge rejected really questionable evidence put forward by Kansas and its experts about the extent of noncitizen voter registration. Below I have some quotes rejecting the key testimony of charlatan Hans von Spakovsky and Professor Jesse Richman. But the bottom line is the court found Kansas put forward no evidence of a “substantial” amount of noncitizen voter registration to justify the requirement that people provide documentary proof of citizenship before they can vote in federal elections. Here is the key conclusion on that point:

For the reasons already explained, the Court finds no credible evidence that a substantial number of noncitizens registered to vote under the attestation regime. The only information about Kansas registration rates relied upon by Mr. von Spakovsky was provided to him by Mr Caskey, and the Court has already evaluated that underlying data in more detail than Mr. von Spakovsky, who simply accepted the numbers as true. His generalized opinions about the rate of noncitizen registration were likewise based on misleading evidence, and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of strict proof of citizenship laws. The Court likewise does not find Dr. Richman’s opinion as to the numbers of noncitizen registration carry weight given the numerous methodological flaws set forth in the Court’s findings of fact.

That leaves Defendant’s empirical evidence of noncitizen registration. He has submitted evidence of 129 instances of noncitizen registration or attempted registration since 1999, bu looking closely at those records reduces that number to 67 at most. Even these 67 instances are liberal estimate because it includes attempted registrations after the DPOC law was passed, a larger universe than what the Tenth Circuit asked the Court to evaluate. Only 39 successfully registered to vote. And several of the individual records of those who registered or attempted to register show errors on the part of State employees, and/or confusion on the part of applicants. They do not evidence intentional fraud…. Moreover, the Court is unable to find empirical evidence that a substantial number of noncitizens successfully registered to vote under the attestation regime….

Defendant insists that these numbers are just “the tip of the iceberg.” This trial was his opportunity to produce credible evidence of that iceberg, but he failed to do so. The Court will not rely on extrapolated numbers from tiny sample sizes and otherwise flawed data.

The court also found there were less draconian ways to insure that noncitizens do not register and vote besides requiring documentary proof of citizenship. It found the documentary proof of citizenship requirement to be quite burdensome: “The Court determines that the magnitude of potentially disenfranchised voters impacted by the DPOC law and its enforcement scheme cannot be justified by the scant evidence of noncitizen voter fraud before and after the law was passed, by the need to ensure the voter rolls are accurate, or by the State’s interest in promoting public confidence in elections.”

Finally, the court sanctioned Kobach himself for not knowing the rules of evidence:  “It is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules. Therefore, the Court finds that an additional sanction is appropriate in the form of Continuing Legal Education.” Ouch!

Quotes about expert testimony of Von Spakovsky and Prof. Richman

“The Court gives little weight to Mr. von Spakovsky’s opinion and report because they are premised on several misleading and unsupported examples of noncitizen voter registration, mostly outside the State of Kansas. His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the Court that Mr. von Spakovsky testified as an advocate and not as an objective expert witness…. Mr. von Spakovsky wrote an editorial in 2011, alleging that 50 noncitizens from Somalia voted in an election in Missouri. Yet, nearly one year earlier, the Missouri Court of Appeals issued an opinion, Royster v. Rizzo, affirming the trial court’s finding that no fraud had taken place in that Missouri election. While he testified that he was not aware of the court opinion at  the time he wrote the op-ed, Mr. von Spakovsky admitted that he never published a written retraction of his assertion about Somalian voters illegally participating in that election. The record is replete with further evidence of Mr. von Spakovsky’s bias. Dr. Minnite testified to, and Mr. von Spakovsky’s CV demonstrates, his longtime advocacy of voting restrictions….As stated above, the Court gives little weight to Mr. von Spakovsky’s opinions. While his lack of academic background is not fatal to his credibility in this matter, the lack of academic rigor in his report, in conjunction with his clear agenda and misleading statements, render his opinions unpersuasive.”

“Indeed, Dr. Richman’s published findings about noncitizen voting can be accounted for entirely by citizenship misreporting. In fact, a group of approximately 200 political scientists signed an open letter criticizing Richman’s work on essentially the same grounds. …The Court finds Dr. Richman’s testimony and report about the methodology and basis for concluding that a statistically significant number of noncitizens have registered to vote in Kansas, are confusing, inconsistent, and methodologically flawed. Most importantly, his refusal to opine as to the accuracy of any one estimate undercuts this Court’s ability to determine that any one of his wildly varying estimates is correct.”

[This post has been updated.]

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