The Trial Against Kobach Kicks Off: Here’s What You Should Know

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.”

View comments (31)
Read the Terms of Use

RA

I have worked BC issues for about four years and have never heard of a $1,600 BC cost. So this must be some legal fee attachment. I have even worked on 'Counselor' - State Department. Yes they do cost more and take longer but that is typical of government ineptitude (an obvious redundancy). Foreign adoptions are not inexpensive and require legal assistance; you were not properly informed of the costs and details obviously. It would seem to me only FAIR if you contact those agencies and get them to finish their contractual agreement - to provide you will a child who is legal to be in the good ol' U S of A. Sounds to me as if you may need an immigration lawyer however bear in mind they are only licensed to practice law in their state not in a foreign country where your problem originated from.

To those who waited till the last minute and it did not work out. Well as anybody reading this has experienced in our adult life that is a risk of waiting till the last minute to do anything.

Finally as we have learned in our Ministry some Democrat minions in blue-country states will accept a church check to help people reestablish their identity, some will not (same state). In other words, it is more the minions who make the decisions on individual applications that count. Here is your only guarantee on this; Federal minions are slower and more expensive, state minions faster and the cost is all over the board ($10 - 45). Fastest is county seat; for marriage and other name changes to help connect the dots between BC and applicant.

Joley B Brown

I was born in Topeka 23NOV1960. I got named after a Cajun song, because neither my father nor his twin brother spoke or understood French. (this is relevant because, well, it's very fact-heavy) and since Dad was a sergeant in the Air Force, had been to war, (Algeria) and had two other kids at the time, my sister Jackie who is 3 years older than me and my sister Peggy who is 11 1/2 years older, and we lived in slum housing in Topeka. A four-plex, as I understand, where there was no running water in the units. There was also a fire department training academy nearby. The slum housing was mixed ethnic, and was demolished a couple of years later to make room for expansion of the Fire Academy. So the home address on my BC is no longer in existence. My dad, more like my uncle, learned the very next day that Jolie Blonde is a song about a girl. They couldn't get the name changed because it would have cost $50 which would be most of dad's base pay for a month. I'm sure Mr Kobach was NOT raised in any conditions of poverty so he probably would not understand any of that.
We left Topeka when I was almost 2. Dad was deployed to London, my brother Roy was almost 1 and my brother Lee was going to be born in a few months. For a while my grandparents put us up, Grandpa was stationed at White Sands Missile Range north of El Paso and Ft Bliss Texas. Lee was born on base in New Mexico. While in London my sister Audrey was born at home in a borough near the Air Force Base, waiting transport to the base hospital. Had she been born on base she would have been automatically a U.S. citizen. Instead, as babies determine when they are born, not on any kind of diplomatic or military schedule... she was born in South Ruislip, London, UK. All went well for decades. She married a soldier (she was a babe in arms when we returned to the U.S.) Far More American than Apple Pie by the way, but by 2002 the autocratic Bush Regime had pushed through a Noble Law that everybody in Texas be constrained to Prove Our Citizenship in order to vote AND to have our drivers licenses, State I.D. etc... She had been stationed with her husband thrice in Germany, and needed to renew her car registration and DL, and had to send to the U.S. Embassy for a New, Certified Homeland Security birth certificate. Which some miscreant stole because it was in a purse which was pretty and had money in it. Somebody Who Was Born In The USA. The documents Audrey was going to take to the DMV the next morning, well, they weren't necessary to the thief and were discarded. How's that for irony, a U.S. citizen born in England w/dual citizenship until age 21 gets a Royal runaround, after being born to a U.S.A.F. Sergeant, married to a U.S. Army Sgt, get robbed of the paperwork which the Texas AND Kansas laws demanded SHE was responsible to gather together the evidence for some stuck-up petty bureaucrats, much like Kobach, Robbed by a U.S. Citizen who never had to do anything more than being born on U.S. soil to get citizenship, That's not anecdotal, it's actually documented in many bureaucratic hordes of paperwork.

Dr. Timothy Leary

The moral of the story is: Don't be stupid enough to leave important documents where they can be stolen.

Anonymous

Everyone has the right to vote. I thought that was a part of our Constitution. Let them vote. We need more people to vote instead of discouraging them.

JD Bennett

Pre-9/11, a person could send out a duplication request form, copy of ID or notarized statement and a check to the vital statistics office of the county of birth to get a replacement Birth Certificate After 9/11 that changed. As an Executive Director of Housing Authorities, I became aware of the barriers to replacing documents. Citizens seeking replacement documents were told to apply IN PERSON. Therefore, low-income people born out of state were effectively blocked from getting: driver licence or voting registration- affordable housing and often employment opportunities. I witnessed citizens - in Kansas = who were unable to comply with document requests based solely on low income and/or lack of strong family support.
Comments by those believing that people should simply not lose important documents show both elitism and stupidity regarding the challenges encountered by real people: Fires - theft - abusive relationships - dysfunctional families - and the real life reality of poverty and/or homelessness. The sad fact is that a significant numbers of people - particularly women - elderly - disabled and low income families with children, in the United States lack housing and food security. Gee Kansas - let's legislate and keep them in their place.
I've lived in Kansas and understand who the State is targeting with their disenfranchisement scheme: minorities - elderly and women are always over-represented at the lower income levels. Those are the folks less able to protect their rights. As for other categories, accidently caught in the mess, I believe the State of Kansas considers to be acceptable collateral damage.

Bob Goodfellow

And I work with many people who are disadvantaged, disabled, getting out of the MH, that sort of thing. I help them clean up their credit and get necessary documents. At least once a month, I find someone who's been "out of circulation" had their identity stolen. And NO, it is not hard to get a birth certificate from out of state. Who is this guy? It's like a phone call and a fax. Yes, the state in question charges for it, but someone has to cover the cost. Hell, Give me five minutes on Lexus Nexus and I'll hand you a copy of YOUR birth certificate.

Mary McGrath

I was born on a military base. Birth certificates from the military are not considered legal in the US. You must apply for one in the state the base is at the age of 18. Passports are expensive and if your not going overseas why get one.

Bob Goodfellow

Let us return to only land owners being allowed to vote. If you don't own a piece of the country, you shouldn't have a say in how it is governed.

Anonymous

Voter fraud is getting more and more threatening to our system as millions of "undocumented" potential voters flood our country. Senior citizens have to present a birth certificate to get their Social Security benefits. But if that's too much of a hassle, find another way to have people prove their citizenship. I was a little annoyed when I had to bring such verifications to get my driver's license, but so what? This issue is too important to ignore!

Anonymous

You don't have to present your birth certificate to get your Social Security Benefits. My husband did it online and this was never needed. I had a birth certificate that was given to my parents when I was born. When I went to the post office to get a passport the lady said it looked OK and submitted it. Anyways I ended up having to request a new certificate because mine didn't have a file date. I can understand why people can get frustrated and there can be misunderstandings.

Pages

Stay Informed