Tuesday was the first day of the Fish v. Kobach voting rights trial. The ACLU and Kris Kobach, Secretary of State of Kansas, squared off over a 2013 Kansas law which requires people to produce citizenship documents, like a birth certificate or U.S. passport, in order to register to vote. Kansas is one of only two states that imposes such a requirement, known as a documentary proof-of-citizenship or the DPOC law.
The ACLU successfully blocked the law in 2016, prevailing in both the federal district court in Kansas and the Court of Appeals for the 10th Circuit. The case is now back before Judge Julie Robinson for trial, the outcome of which will determine whether or not the law is struck down permanently. The ACLU represents the League of Women Voter and individuals disenfranchised by the law, three of whom took the stand to share their experiences. In an unusual move, Kobach — who is being sued in his official capacity as secretary of state — chose to represent himself in court.
Kobach and Dale Ho, ACLU’s Voting Rights Director, each delivered opening statements, which set the stage for the week ahead.
The 10th Circuit’s test
In October 2016, the 10th Circuit court preliminarily blocked Kobach’s DPOC law, finding that “there is no contest between the mass denial of a fundamental constitutional right and the modest administrative burdens to be borne by Secretary Kobach’s office and other state and local offices involved in elections.” This injunction stands until the district court rules — which means that the law will remain blocked until the outcome of the trial.
Kobach has maintained that the law is necessary for Kansas to address the serious problem of noncitizens registering to vote. The 10th Circuit found that, under the National Voter Registration Act, it is illegal to demand citizenship documents unless the state satisfied a two-prong test. Kobach must prove that 1) there are a substantial number of noncitizens registering to vote in Kansas and 2) that nothing less burdensome than the DPOC requirements would suffice to fix the problem.
The numbers speak for themselves
Two of Kobach’s witnesses, Brian Caskey, Kansas Director of Elections, and Tabitha Lehman, the Sedgwick County Election Commissioner, stated that since 2000, Kansas has identified 127 individuals — out of 1.8 million voters -- whom they believe were non-citizens at the time that they registered or “attempted” to register to vote. Of those 127 people identified over the last 18 years, 43 appeared to have successfully registered to vote in Kansas and only 11 appeared to have actually cast a ballot.
Instead of using alternative approaches to prevent isolated instances likes this – 11 -- Kansas passed a law which disenfranchised tens of thousands of people. As Dale Ho put it in his opening, “Enforcing this law is like taking a bazooka to a fly. The collateral damage is thousands.”
This was supported by testimony from the expert witness, Michael McDonald, who found that most people who were placed on Kansas’ list of suspended voters did not ultimately become registered. In fact, McDonald found that 70.9 percent or 22,814 people who were suspended as of Sept 24, 2014 remained suspended or were canceled by Dec. 11, 2015.
McDonald further testified that the number of voters blocked by the DPOC law increased even further after December 2015. By March 31, 2016, more than 30,000 people had been blocked. McDonald said the number of blocked applicants would have been expected to go even higher as applications increased closer to the 2016 election.
The law had a disproportionate effect on two groups: younger voters and voters who do not have a political party affiliation. While the short-term consequences of being disenfranchised in a particular election are obvious, McDonald also noted the long-term effects on the habit of voting. People who miss that first opportunity may not show up again.
The voter’s plight
Three Kansans took the stand to explain their experiences in attempting to vote under Kobach’s DPOC regime.
On October 17, 2014, Charles “Tad” Stricker, went to the motor vehicle office to get his Kansas driver’s license, and he had to do it that day. It was the last day to register to vote before Kansas’ registration deadline. When he first arrived, a clerk told him that he needed additional documents in order to get his license. Tad hurried home, got his birth certificate and the documents, and rushed back to the office before closing. He affirmed that he wanted to register to vote, and he received a temporary driver’s license and was instructed that he would receive his official driver’s license and registration card. Come Election Day, Tad and his wife went to the polls together, only for him to be hold that they “did not have him registered to vote.” He was eventually given a provisional ballot. He described the experience as, “confusing.” He added, “I felt embarrassed — like I was the one who did something wrong.”
Despite filling out a provisional ballot, Tad found out later that his vote was not counted in the 2014 election. As for his reason for being plaintiff in the case, he said, “It about the principle. The average Kansas citizen shouldn’t have to sue the Secretary of State just to get registered to vote.”
Donna Bucci, a 59-year old who works at the Kansas Department of Corrections, sought to register to vote in 2014 when she was renewing her driver’s license. She left the motor vehicle office believing that she had registered to vote, but later received a letter saying that she needed to show a birth certificate or passport. Donna has never left the county and does not have a U.S. passport. She also did not have the money to spend on ordering a birth certificate from the state of Maryland, where she was born.
On cross examination, the state focused on whether the plaintiffs could have, in theory, found a way to comply with the law. Despite the fact that no one asked Tad for further documents, Kobach wanted to know if he had a smartphone and if Tad could have sent a photo of his passport to the election office. Tad responded, “I don't think that's a very secure way of transferring sensitive personal information — by text message.”
Susan Becker, an attorney for the state, asked Donna whether she could have participated in a telephone hearing on the birth certificate matter on her lunch break. Donna, who isn’t allowed to have her phone with her at job, expressed doubt.
Finally, T.J. Boynton, an English professor at Wichita State University, testified that, like Tad Stricker, he took his birth certificate to the motor vehicle office to register to vote. He found out at the polls in November 2014 that he was not on the list, so he filled out a provisional ballot. At least a month passed after the election before he received a notice that he needed to provide proof-of-citizenship, which he took as notification that his vote had not, in fact, been counted. Later in 2015, when he was at the motor vehicle office to replace his license, he was asked again whether he wanted to register to vote, TJ declined.
“I thought it was futile to register” at the motor vehicle office, he said, “because I had tried to before and it didn’t work.”