Kansas law requiring proof of citizenship to vote to be challenged in court Tuesday
Kris Kobach, Kansas secretary of state, arrives for his meeting with then-president-elect Donald Trump at Trump International Golf Club, November 20, 2016 in Bedminster Township, New Jersey. Drew Angerer/Getty Images

Kansas Secretary of State Kris Kobach has made a career of fighting the largely non-existent problem of voter fraud, including for the Trump administration — and now, one of his policies is about to have its day in court.

A federal trial is set to begin Tuesday in Kansas City challenging Kansas’ voting law requiring proof of citizenship to register to vote, such as a birth certificate or passport.

The American Civil Liberties Union will represent the League of Women Voters and individual Kansas voters in challenging the law, which took effect in 2013. The law, they allege, violates the National Voter Registration Act and imposes barriers that prevent many citizens from registering to vote. Kobach, the law’s chief architect, will represent himself in the trial.

According to Kobach, there have been a few instances of non-citizen voting in Kansas, which has approximately 1.8 million registered voters. The Associated Press noted that Kobach told the court he has found 127 non-citizens who have attempted to registered to vote, 43 of whom were successful. Only 11 non-citizens have voted in Kansas since 2000, Kobach said.

The proof of citizenship requirement, however, has had a more widespread effect on Kansas’ lawful citizens. The law blocked one of every seven Kansas voters from registering to vote between 2013 and 2016, Dale Ho, director of the voting rights project at the ACLU, told the Huffington Post.

According to a report compiled by the Kansas Advisory Committee to the U.S. Commission on Civil Rights, the law has disproportionately affected younger voters, women who have changed their last names and a variety of marginalized populations, including the elderly and those with mobility issues; transgender and non-conforming citizens; voters below the poverty line and African-American voters.

As a result, a 10th Circuit judge blocked the state from requiring proof of citizenship when registering to vote at the Department of Motor Vehicles. In the preliminary ruling, which will stay in place until the upcoming trial has been decided, Judge Jerome Holmes, declared the proof of citizenship requirement had caused a “mass denial of a fundamental constitutional right.” The 10th Circuit also separately ruled in 2014 that the state cannot require proof of citizenship when registering to vote using a federal form.

During the trial, the ACLU will be asking for Kobach to be held in contempt of court for refusing to comply with the 10th Circuit’s ruling blocking the law, the organization noted. Kobach was previously sanctioned $1,000 by the court in June 2017 for “deceptive conduct and lack of candor.”

The Kansas law’s fate could have national implications. According to the Associated Press, Alabama and Georgia have proof-of-citizenship laws that aren’t currently being enforced, and Arizona has a similar law to Kansas, though its provisions are more lenient. A ruling against the Kansas law could open the door to challenges to these laws, while a ruling in Kobach’s favor could spark other states to implement their own proof-of-citizenship legislation.

If the court strikes down the Kansas law, it could also stymie Kobach’s efforts to implement the provision nationwide. Kobach, a Trump ally who headed up the president’s now-disbanded Presidential Advisory Commission on Election Integrity, emailed Trump transition officials about amending the NVRA to explicitly allow proof-of-citizenship requirements after the 2016 election, the Huffington Post reported. Kobach later reportedly discussed his ideas in person during a November 2016 meeting with Trump and advisors Steve Bannon, Stephen Miller, Jared Kushner and Reince Priebus, the ACLU said.

U.S. President Donald Trump speaks alongside Kansas Secretary of State Kris Kobach (L) and Vice President Mike Pence (R) during the first meeting of the Presidential Advisory Commission on Election Integrity in Washington, D.C., July 19, 2017.
U.S. President Donald Trump speaks alongside Kansas Secretary of State Kris Kobach (L) and Vice President Mike Pence (R) during the first meeting of the Presidential Advisory Commission on Election Integrity in Washington, D.C., July 19, 2017. Saul Loeb/Getty Images

In order to prove the Kansas law’s legality, the 10th Circuit stipulated that Kobach must prove that “1) there are a substantial number of noncitizens registering to vote in Kansas and 2) that it is necessary to require citizenship documents from every registrant,” according to the ACLU. This means that Kobach, who has long maintained that voter fraud is a problem — even as the evidence says otherwise — will be forced to back up his longtime claims under oath.

The challenge of the Kansas law, Ho told the AP, “is also a case about this false narrative of noncitizens participating in elections — which Kobach has said for years has been happening in large amounts — and now we are going to see his evidence.

“[Kobach’s] evidence is going to be put on the stand in open court for a federal judge to rule on, and I think the public will finally get to see how little evidence he actually has,” Ho added.

To defend his case, the ACLU noted, Kobach is pointing to data from the Cooperative Congressional Election Study. The data was used in a 2016 study that has been cited by those defending voter fraud claims, including Trump administration officials backing up the president’s claims of illegal voting in the 2016 election.

The 2014 study, which was published in the Electoral Studies journal and in the Washington Post, claimed that “some non-citizens participate in U.S. elections, and that this participation has been large enough to change meaningful election outcomes including Electoral College votes, and Congressional elections.”

That study, however, has been widely disputed. The Washington Post followed up its publication of the study’s findings with three rebuttal articles, and a separate peer-reviewed article contested the study’s findings and found the “rate of non-citizen voting in the United States is likely zero.”

The controversial study has even been criticized by those behind the CCES’s initial data. The ACLU noted that the CCES study’s author will testify on its behalf during the Kansas trial.

“I designed and implemented the Cooperative Congressional Election Study, and it does not say that non-citizens voted,” professor Brian Schaffner of the University of Massachusetts at Amherst said in a video published by the ACLU. “It’s an internet survey, and what the so-called evidence for non-citizen voting boils down to is a few dozen citizens who mistakenly clicked the wrong button and identified themselves as non-citizens.

“My study actually shows that the likely rate of non-citizen voting in the United States is zero,” Schaffner said.