Outgoing Kansas Secretary of State Kris Kobach is reportedly on President Donald Trump’s list to be the next attorney general. For voter suppression enthusiasts, this would be a big win. But for those of us who value the fundamental right to vote, and those of us appalled by the massive voter suppression efforts on Tuesday—some of which are ongoing, cough, Georgia—a U.S. Department of Justice (DOJ) headed up by Kris Kobach would be a disaster.
This wouldn’t be the first time that Trump tapped Kobach to work for him in some capacity. He served as an adviser on the now-defunct Election Integrity Commission, which Trump formed to help him prove the preposterous lie that anywhere from 3 million to 5 million people illegally voted in the 2016 elections. Kobach has also been floated as a potential replacement should Kirstjen Nielsen be dismissed from her secretary of homeland security position.
When he was Kansas secretary of state, Kobach made disenfranchising voters central to his work. There’s little reason to believe his time at the DOJ would be any different. While Kobach would not be in a position to enact any laws, he would be in a position to have the DOJ stand with states who do. For example, Obama’s DOJ opposed Texas’s voter ID law, but with Jeff Sessions at the helm, the DOJ reversed course and submitted briefs supporting it. Given Kobach’s performance trying to defend the voter suppression laws he helped to create in his home state, we can expect him to do so at the DOJ—equally incompetently.
One case in particular, Fish v. Kobach, is a prime example of Kobach’s utter ineptitude when it comes to defending his voter suppression tactics.
The Fish v. Kobach saga began in 2013. During that time, Kobach was instrumental in prompting the Kansas legislature to pass a law that required state voters to provide proof-of-citizenship documentation before registering to vote.
The American Civil Liberties Union filed a lawsuit in 2016 challenging the law, and for years, Kobach tried to make the case that the law addressed real concerns about voter fraud involving non-citizens registering en masse to vote.
In May 2016, a district court issued a preliminary injunction blocking the law while the case proceeded. Kobach appealed that ruling to the Tenth Circuit Court of Appeals, which said in a unanimous opinion that the National Voter Registration Act (NVRA), also known as the motor voter law, which requires state governments to permit people to apply to register to vote for federal elections when they apply for or seek to renew a driver’s license, preempted Kansas’ law requiring documentary proof of citizenship. In a stinging rebuke, the Tenth Circuit said that the disenfranchisement of 18,000 motor voter applicants as a result of the proof of citizenship requirement, was a “mass denial of a fundamental constitutional right.”
But Kobach had gotten sneaky. Starting in 2013, he’d tried to skirt court precedent by implementing a two-tier voting system—one for federal elections and one for state and local elections. In 2016, he moved to skirt the Tenth Circuit ruling and formally implement a dual-registration system in order to prevent people who use federal voter registration from also voting in state and local elections unless they provided proof of citizenship. After all, the court hadn’t said anything about state and local elections, just federal ones. Right? Makes total sense.
Kobach was smacked down again, this time in state court in a case called Brown v. Kobach. In Brown, the court blocked the two-tier voter registration system, and ruled that Kobach had overstepped his legal authority.
If you think this would have tempered Kobach’s zeal, you’d be wrong; he kept pressing on in court and he kept losing in court.
Likely because the state didn’t want to spend any more money defending Kobach’s bullshit law, when Fish v. Kobach—the federal case—went to trial in March 2018, Kobach decided to represent himself. It would prove to be a terrible decision as he bumbled his way through the trial, all the while flouting the rules of evidence and civil procedure and failing to contain his key expert witness, who ended up arguing in open court with the judge. (Yikes.)
In a 118-page opinion, U.S. District Court Judge Julie Robinson ruled that Kobach’s proof-of-citizenship law violated the motor voter law, as well as the 14th Amendment. She also completely destroyed Kobach’s defense of the law; she ruled that there was no proof of voter fraud and that the law blocked tens of thousands of eligible Kansans from voting.
Judge Robinson also sanctioned Kobach personally because his behavior during trial was ridiculous. He attempted several times to introduce evidence in court that he had not previously disclosed to plaintiffs. Contrary to what you see in the movies, judges do not allow parties to litigation to spring evidence on one another at the last minute. Judges also don’t appreciate it when witnesses on the stand argue with them, which is exactly what Kobach’s key expert witness, Jesse Richman, a political science professor at Old Dominion University, did. The judge became so fed up with Richman that she reportedly said to him, “You don’t speak unless you’re asked a question. You aren’t here as an advocate, you aren’t here to trash the plaintiffs, and you aren’t here to argue with me.”
As a result of Kobach’s abysmal performance in court, he was ordered to take six hours of Continuing Legal Education (CLE) classes on federal or Kansas civil rules of procedure or evidence—and that’s in addition to any other CLE courses required by his law license. Trust me when I say that is extremely embarrassing. Forcing attorneys to take extra CLE classes because their performance during trial is that bad is not something judges often do.
But perhaps the fact that he is incompetent at his job gives Trump warm fuzzies. After all, Trump is incompetent at his job. Trump and Kobach can be incompetent together, and wouldn’t that just be grand?
It is always important to note that voter fraud doesn’t exist in any measurable way. Not in Kansas. Not anywhere. In 2015, Kobach convinced the Kansas legislature to grant him authority to prosecute voter fraud cases, making him the only secretary of state in the country with that sort of prosecutorial power. At the time, he insisted that he knew of 100 such cases in Kansas, according to the Brennan Center. But that, like most efforts to uncover voter fraud, fell flat. (It’s hard to uncover rampant voter fraud when there is no rampant voter fraud.)
For a year and a half, Kobach tried to prosecute voter fraud cases, but ultimately came up so woefully short that the editorial board of the Kansas City Star called him “a big fraud on Kansas voter fraud.” Of the 100 cases, Kobach prosecuted only six. And of those six, only four prosecutions were successful.
His entire effort was an utter failure.
But like most of the seemingly mediocre men at the helm of this country, Kobach is unlikely to be fazed by his repeated failures, including his failure to win the race for Kansas governor despite doing everything in his power to rig the election in his favor. He has tried for several years to prove that voter fraud exists and has been unable to do so. But that won’t stop him. And if given a chance to head the DOJ, we can expect that he will defend to his last breath any state laws that crack down on voters of color. As we saw on Tuesday, these laws have a measurable disenfranchising effect—which is their entire purpose.