The Kobach Voting Rights Trial: Live Updates

Note: This live-blog is now over

Welcome to TPM’s live-blog of the Kris Kobach voting rights trial.

TPM reporter Tierney Sneed, who anchors our voting rights coverage, is in Kansas City, Kansas, where a federal judge is hearing Fish v. Kobach, a challenge to the state’s controversial voting law.

The law requires people registering to vote to show documentary proof that they’re a U.S. citizen. Kansas Secretary of State Kris Kobach, who also ran President Trump’s short-lived voter fraud commission, claims the proof-of-citizenship requirement is needed to stop non-citizens from voting. The ACLU, which is challenging the law, says the rate of non-citizen voting is tiny, and that the requirement violates federal voting law by making it too difficult to register, especially for racial minorities. The outcome could have national implications. 

The trial will last at least through the end of the week, and Tierney will be on the scene throughout. We’ll be updating this page with the latest news multiple times per day, and you can find Tierney’s longer-form coverage of the trial on the main site. You can also follow her on Twitter at @Tierney_Megan.

3/13, 1:09 p.m. CT: ACLU scrutinizes Kobach witness’ methodology:

This afternoon, as ACLU attorney Dale Ho continued his scrutiny of the research methods employed by Jesse Richman in a report alleging statistically significant rates of non-citizen voter registration in Kansas, Ho turned attention to Richman’s methodology in one of his analyses.

Specifically, Ho asked Richman about his effort to code respondents who had “foreign”-sounding names for weighting purposes in his survey. Ho played video from Richman’s previous deposition in which Richman said that the process was “very subjective” and that he was sure he made mistakes.

After going over some of the names Richman coded as foreign — two respondents with the last name Lopez were coded as foreign, and three Lopezes were not — Ho asked Richman how he would code the name “Carlos Murguia.” Richman said he’d probably code the name as “foreign.” Ho pointed out that Murguia is a federal judge in the same courthouse in which the trial is taking place. Richman admitted he wasn’t aware of that.

The rest of Ho’s line of questioning appeared to be designed to show just how subjective Richman’s approach was.

3/13, 12:13 p.m. CT: Headed home:

3/13, 10:59 a.m. CT: ACLU exposes key flaw in Kobach witness’s report: The ACLU is cross-examining Jesse Richman, a political science professor who produced a report for Kobach alleging a statistically significant rate of non-citizens attempting to register to vote in Kansas. ACLU attorney Dale Ho asked Richman about one of his analyses: his matching of certain voter files and the “TDL” list, which documents non-citizens who have obtained temporary visas or temporary driver licenses. Ho asked Richman if there was a way to know if the matches indicated that someone was a non-citizen when he or she sought to register to vote. Richman conceded that it was “possible” a person on the TDL list became a citizen before registering. Pressed further by Ho, Richman said he had made a request to get DHS for data to verify his match list, but that request was not fulfilled for his report.

3/12, 4:53 p.m. CT: About that decision by Kobach to represent himself:

3/12, 4:28 p.m. CT: Judge Tears Into Kobach Witness – Judge Julie Robinson repeatedly chastised an expert witness called to the stand by Kobach for interrupting her and the other counsel.

“No, Dr. Richman, I’m done,” Robinson said, voiced raised, when Jesse Richman, a professor at Old Dominion, kept speaking after she had told him he had sufficiently answered her question.

Robinson’s scolding came during a procedural tussle between Kobach and ACLU attorney Dale Ho. Ho had objected to some numbers in a slideshow Kobach was showing during Richmann’s testimony, because Ho said they weren’t in Richman’s report.

“The claim that it wasn’t there is ridiculous,” Richman said, even after the judge upbraided him about interrupting. Then Robinson when off on him, warning him that he shouldn’t “say anything” unless asked a question.

“You’re not here to advocate, you’re not here to trash the advocate, you’re not here to argue with me,” she said.

3/12, 12:30 p.m. CT – ACLU brings up ‘racist’ founder Of Kobach expert’s think tank: A lot of the ACLU’s cross-examination of Steven Camarota focused on the methodology he used to produce his report defending Kansas’ law. The ACLU’s questioning suggested Camarota didn’t properly control for a variety of factors when comparing the trends in Kansas’ voter turnout and registrations rates to the trends in other states. Camarota argued that he didn’t need to for the purposes of his conclusions.

But the ACLU also attacked the think tank where Camarota is director of research. ACLU attorney Angela Lui showed him an article by the Southern Poverty Law Center calling John Tanton, a co-founder of the Center for Immigration Studies (CIS), the “racist architect of the modern anti-immigrant movement.”

Camarota had earlier balked when asked whether he was aware that Tanton was a founder of CIS.

“He certainly played a role in its founding,” Camarota finally conceded.

3/12, 10:32 a.m. CT – Kobach presents another “expert” witness:

3/12, 10:01 a.m. CT – Kobach accused of withholding evidence: The challengers in the case accused the Kansas Secretary of State of withholding evidence Monday.

At issue are records associated with the five or six Kansans who lacked proof of citizenship and therefore went through a hearing process to register to vote, as well as evidence of those who sought to use the process but didn’t ultimately register through a hearing.

The accusations came because Kansas last week said it would like to call an additional witness — Jo French, a 75-year-old woman, who was registered through the hearing process — to testify about the process, which Kansas offers for those who can’t obtain the required records. Kansas wanted to call her because a witness for the challengers talked at length about the hearing process, which Kansas said it didn’t expect.

In the hearing process, Kansans lacking the documents required under the proof of citizenship law fill out forms requesting a hearing so that they can prove their citizenship. The hearing is typically with the secretary, the lieutenant governor, and the attorney general or his designee.

The challengers were able to interview French before trial started Monday, and through the process discovered that there are records related to her going through the hearing process that they say should have been turned over during discovery. They said the records — including the forms and any other records presented as part of the hearing — bolstered their case in showing how burdensome the process actually was.

The judge seemed to agree that Kansas should have produced the records. Kobach admitted that they didn’t keep records of those who called his office inquiring about the hearing process but not ultimately going through it. There were records of five people formally requesting and going through the hearing. The circumstances around a sixth were a bit of a mystery, because that person filled out a form but may have not gone through the hearing — Kansas didn’t have the other records, either way.

The judge is allowing French to testify later today.

3/9, 1:50 p.m. CT – A leader of the campaign for strict voting laws takes the stand: Hans von Spakovsky is testifying now as Kobach’s first witness, with the schedule being adjusted (the ACLU still planning to play its video of the Kobach deposition at some point) so von Spakovsky can catch a flight tonight. A quirk of the new schedule is that he is testifying after Minnite, who testified about the meager number of voter frauds indictments — 40, for voters — that the George W. Bush Justice Department produced during its Ballot Access and Voting Integrity Initiative. Von Spakovsky worked for the DOJ at the time the initiative was launched. Like Kobach, he has been a leader of the effort to stoke fear over voter fraud and build support for restrictive voting laws.

3/9, 12:57 p.m. CT – Expert discusses Kobach’s misleading statements on voter fraud: Most of the morning’s testimony was from Lorraine Minnite, a political scientist who is an expert on voter fraud (or really, the lack thereof). The ACLU’s questioning of her focused a lot on the spreadsheet Kobach presented of non-citizen registration attempts in Sedgwick County. But she also weighed in on some of the misleading public statements Kobach has made about voter fraud in the past. Specifically she spoke about a case where a court found no evidence of voter fraud, and yet Kobach continued to cite it in op-eds after the court’s findings.

3/9, 9:46 a.m. CT – Kansas admits different voters get different information: Becca Waldmen, an attorney for the ACLU challengers, has been pressing Kobach’s elections director, Bryan Caskey, on how voters who have registered to vote via the preliminary injunction that was imposed on the law have been treated by his office, versus those who were registered after showing proof of citizenship. Caskey tried to dodge her question at first, until the judge had to intervene to urge him to answer the question —whether the two groups of voters receive different information about voting from the SoS office —directly.

“It is not the same information,” Caskey admitted.

3/9, 9:26 a.m. CT – Judge still explaining procedure to Kobach team: Tempers were a little cooler as we started trial Friday, but we’re still beginning with a procedural hiccup. Kansas attorney Garrett Roe sought to present pieces of the challenged law’s legislative history. He couldn’t at first explain whether he wanted the court to take judicial notice  a term for non-disputed facts that are typically in the public domain — or submit it as evidence.

The judge said she wouldn’t submit it as evidence, and she won’t take judicial notice until the opposing counsel had a chance to look at the legislative history documents.

3/8, 5:22 p.m. CT – Judge goes off on Kobach: Judge Julie Robinson has repeatedly had to instruct Kris Kobach’s legal team on the trial procedure. By Thursday afternoon, when Kobach’s lawyers tried to admit evidence she had previously blocked them from submitting, Robinson had had enough.

The proposed evidence was the number of suspended voters, a number Kobach’s team says in dynamic. They had blown a deadline previously when they tried to submit it on Monday. But that didn’t stop Kobach’s team from trying to introduce the new numbers while attorney Garrett Roe was questioning Bryan Caskey, an elections official in the secretary of state’s office.

“When do we close the door, Mr. Kobach?” Robinson said, her voice raised. “The bottom line, you have to cut off the evidence at some point.”

Kansas needed to stick to the evidence it had provided to the opposing counsel by the deadline, Robinson said.

“That’s not fair,” Robinson added, about introducing new numbers in the midst of a trial. “That’s ambush.”

Kobach himself tried to make the case for entering the numbers. But Robinson didn’t want to hear it.

“No, no that’s not how trials are conducted,” she lectured Kobach. She noted that for two years while the case was being litigated, Kobach’s never sought to update the initial numbers, until the eve of the trial.

Then Sue Becker, another lawyer for Kansas, took a turn to try to defend introducing the numbers.

“No, let me finish,” Robinson said.

3/8, 2:20 p.m. CT – Kobach official denies Kansas form aims to scare voters: The challengers’ lawyers are questioning Bryan Caskey, Kris Kobach’s director of elections, about the form Kansans must fill out if they don’t have proof of citizenship documents and are seeking a hearing with the Board of Elections to explain their circumstance.

Caskey was asked about language on the form that asks for the person’s signature to swear that they don’t possess the forms. Perjury would be a felony, the form says.

“We’re definitely not scaring anyone, we are providing information,” Caskey said.

The lawyer for the challengers asked what the form means for a person who isn’t sure if they posses the documents, or can’t find them.

“I’m not going to get in the mindset of someone else” filling out this form, Caskey said.

3/8, 2:10 p.m. CT – Challengers: Kansas website confuses voters: Testimony from the Sedgwick County election commissioner, Tabitha Lehman, dominated Thursday morning. Making up much of her testimony was discussion of a spreadsheet assembled by the Kansas Secretary of State’s office purporting to show non-citizens who registered to vote or attempted to vote in Sedgwick County, the second largest county in the state. Mark Johnson, a lawyer for some of the challengers, got Lehman to admit that wording on the Secretary of State’s website was confusing. The website, according to Johnson, says that people whose voter registrations are incomplete due to lack of citizenship documents have until the night before an election to submit the required documents to be registered in time. In fact, as Lehman acknowledged in her testimony, those with incomplete registrations are put on what is called the suspense list and have their registrations canceled after 90 days if they don’t submit the required documents.

3/8, 10:25 a.m. CT – After a struggle, Kobach’s non-citizen voting spreadsheet is included – Another day in the trial over Kris Kobach’s controversial voting law begins with a procedural tussle.

As I mentioned yesterday, the Kansas Secretary of State has a summary of the alleged non-citizens who registered to vote, which he wanted to submit as evidence. It was going to be used for cross-examining a county clerk that the ACLU has called as a witness, aiming to show the flaws in Kobach’s investigation into non-citizen voters.

But yesterday, Judge Julie Robinson blocked Kobach from using the summary, at least temporarily, because the challengers hadn’t seen all the underlying data. The questioning related to the summary, which is in the form of a spreadsheet, was pushed off to Thursday.

The procedural squabble that would then ensue seems silly, but there’s a reason there’s so much bickering over the spreadsheet. Kobach, as part of the test that an appeals court imposed on the case, has to show that non-citizens registering to vote is a “substantial” problem. He thinks this spreadsheet — said to show 38 examples of non-citizens registering or attempting to register — will help his case. (I’ve seen earlier versions of the spreadsheet, but not the most recent he’s presenting in trial). The challengers will aim to poke holes in the claims, and show where they say Kobach is exaggerating the rate of non-citizen voter registration.

Today, the wrangling continued as the challengers sought to permanently block admission of the summary on the grounds that it was hearsay. In response, Judge Robinson excluded the parts of the summary that came from statements given by people not in the Secretary of State’s office — for example, notes about a conversation with a non-citizen who had registered, deeming them hearsay. But she allowed Kobach to include the information deducible from the Secretary of State’s records.

This is where it got even more confusing. ACLU lawyers then objected to the judge’s decision to exclude parts of the summary. They argued that if the spreadsheet was going to be entered, they wanted those sections available to them for questioning the clerk. They said the information the judge was seeking to redact would help them show the mistakes made in Kobach’s investigation. They withdrew their original objection to the spreadsheet. As a result, and after all that hullabaloo, the spreadsheet was entered unredacted.

So count that as a small win for Kobach — though we can expect the ACLU to try to raise significant doubts about its claims.

3/8, 8:54 a.m. CT – Kobach reportedly bringing armed escort to court today: He had asked about it, yesterday, citing potential threats.

3/7, 6:39 p.m. CT – A few stray observations from day two: Some final thoughts for today are available in this reporter’s notebook post (Prime access).

3/7, 4:32 p.m. CT – Judge again rejects evidence from Kobach: Just after I finished my story about the issues Kobach’s legal team has had in following trial procedure, Judge Robinson blocked yet another piece of evidence they were trying to admit. It was a spreadsheet summarizing voter registration data, and challengers objected to its admission because they hadn’t seen all the underlying data.

“This is an overnight project for everybody,” Robinson said, instructing Kobach’s team to show the voter files they had not seen.

3/7, 10:40 a.m. CT – League of Women Voters: Kobach requirement ‘totally drained our resources’ for registration: Marge Ahrens, a leader of the Kansas League of Women Voters, testified on how the proof of citizenship law affected her group’s voter registration drives. Before the requirement, Ahrens said, it would usually take the group about three or four minutes to register a new voter. But after it was implemented, it took on average an hour. One local league saw its registrations drop 90 percent after the requirement went into effect, Ahrens said.

“It drained us,” Ahrens said. “It totally drained our resources”

3/7, 10:12 a.m. CT – Kansas: ACLU trying to ‘generate publicity’ by playing Kobach deposition video: Thursday’s trial day started with a bit of fireworks. Sue Becker, an attorney for Kansas, tried to convince Judge Robinson not to play video of a Kris Kobach deposition about his draft voting law proposal, which he presented to the incoming Trump administration.

In the deposition, Kobach is questioned by ACLU lawyers about his proposal, which would amend the National Voter Registration Act to allow states to ask for proof of citizenship from people registering to vote.

Becker argued that playing the video served no probative value, and said the deposition could be presented in other ways, including being read aloud. She said that Kansas had not been given by the challengers the edited version of the video they intended to play, and she complained that the 45-minute video was too long for their tight trial schedule.

Judge Robinson was skeptical. She said she’d prefer to have the video played live so she could make sure she was following correctly.

“If they read it aloud, it will be 45 minutes as well,” Robinson said about Becker’s concerns about the time it would take to play it.

Meanwhile, Orion Danjuma, an ACLU attorney, argued that playing the video would allow the judge to assess Kobach’s credibility and demeanor.

Becker stepped up her objections. She said that Dale Ho, the ACLU’s lead attorney on the case, had tweeted his intentions with the video. Becker said Ho claimed in the tweet that the video would show Kobach’s “grand conspiracy” to make it harder to vote.

Becker appears to be referring to a video tweeted Tuesday by the ACLU account of Ho summarizing Tuesday’s trial day and previewing Wednesday. The Kobach deposition video, Ho said, “will really shine a light on, really, what is a nationwide plan here to make voting harder.”

Playing the deposition video was intended “solely to generate publicity,” Becker argued, adding that the judge could assess Kobach’s credibility and demeanor by his presence at the trial as Kansas’ lead attorney.

Danjuma, in his response, accused Becker of mischaracterizing Ho’s statement, and said that Kobach could testify as a witness if he wanted to. Becker said that there were “ethical” issues with Kobach testifying as a witness since he was also Kansas’ lead attorney in the case. Asked by Robinson if Kobach planned to testify live about the proposals, Becker said no.

Robinson said she had already ruled to include the video, but that the ACLU would not be able to play it tomorrow, to give Kansas time to watch the 45 minuted edited version.

3/7, 8:47 a.m. CT – Report: Kobach asks about bringing gun to courthouse, told no: This from Kansas City Star reporter Bryan Lowry is interesting…

3/7, 8:45 a.m. CT – Day two kicking off: Good morning from the Robert J. Dole courthouse in Kansas City, Kansas. Today we’re moving into day two of the trial over Kansas’ voter proof-of-citizenship law. The ACLU is expected to finish with its witnesses today. Then the other challengers in the case, represented by local attorney Mark Johnson, will lay out their own case. The challengers represented by the ACLU — led by Steven Wayne Fish — allege that the requirement is a violation of the National Voter Registration Act (NVRA), while the other challengers say the law violates the U.S. Constitution. Kansas Secretary of State Kris Kobach is defending the law.

At the end of Tuesday’s trial day, Judge Julie A. Robinson denied Kobach’s motion to exclude as evidence draft proposals he put together for then-President-elect Donald Trump and his transition team to weaken federal voting law. So I’ll be looking out for how the ACLU incorporates that — as well as a deposition Kobach gave about the proposals, which the judge said also could be included — into its arguments.

3/6, 6:10 p.m. CT – Judge rejects Kobach motion, rules proposal pictured in infamous Kobach-Trump photo is evidence: Tuesday afternoon, Judge Robinson ruled on a motion by Kansas to exclude evidence related to a proposal by Kobach to the incoming Trump administration to weaken a federal voting law at the heart of the current case.

You may recall the photograph taken at Bedminister of Kobach and then-President-elect Trump, in which Kobach was holding an outline of proposals. Well, before the trial, the ACLU successfully forced Kobach to turn over that proposal, as well as an email Kobach sent to a Trump transition official. From that, we learned that Kobach proposed to the Trump team that it try to have Congress amend the 1993 National Voter Registration Act (NVRA) so that it would allow states to impose proof-of-citizenship requirements.

On Tuesday Judge Robinson ruled that the NVRA-related aspects of the proposals — as well as a deposition Kobach gave about them as they wrangled over turning them over  — could be admitted as evidence. She said the proposals bore on the ACLU’s claim that Kobach recognized that the current Kansas requirement didn’t meet the test an appeals court previously put forward about interpreting the NVRA.

As Judge Robinson summarized ACLU’s and Kobach’s arguments about whether the proposals should be included, Kobach shook his head in what appeared to be frustration or annoyance.

3/6, 2:55 p.m. CT – Kobach asks whether witness is biased against him: The ACLU’s next witness was Michael McDonald, an associate professor of political science at the University of Florida, and well-regarded elections number-cruncher.

McDonald has analyzed data and voter registration information handed over by the state of Kansas. He testified that the proof-of-citizenship requirement has a disproportionate effect on young people, and people not affiliated with a political party. To come to that conclusion, McDonald compared the rate of young people and unaffiliated people on the voter rolls with the rate of young people and unaffiliated people who attempted to register, via the Motor Voter Law process, and had those registrations canceled or suspended due to not fulfilling the requirement.

In his cross examination, Kobach started by questioning McDonald’s qualifications as an expert. Kobach read a number of tweets and asked McDonald if he was personally biased against Kobach.

3/6, 1:07 p.m. CT – ACLU presents two voters it says were disenfranchised: The first was Charles Stricker, a hotel manager who actually has the type of documents that under the Kansas requirement would have verified his citizenship. Stricker testified that when he went to the DMV to get a Kansas driver’s license in 2014, he did bring proof of citizenship. Stricker understood from the DMV clerk that he would be registered to vote, but when he showed up at his polling place, he was told he had not been, due to the requirement. The ACLU argues that the kind of bureaucratic snafus that appear to have disenfranchised Stricker are endemic to the law’s process, meaning even some voters who do have the proper documents are victims.

The second ACLU witness was Donna Bucci, who works in the kitchen of a corrections facility. When Bucci went to the DMV to renew her license, she attempted to register to vote but didn’t have the documents required under the law, according to her testimony. Bucci testified that she had lost her birth certificate at some point in her life, and that the cost to have it replaced — she was born in Maryland — would have been an issue for her.

In both testimonies, the cross examination by the state of Kansas focused on the other ways the witnesses could have, in theory, sought to comply with the law. The state’s lawyers also questioned whether they had tried hard to enough to provide the documents.

Kobach asked Stricker if he could have sent a photo of his passport from his phone to the elections office. Stricker said he did not typically send sensitive identity documents over the phone.

Susan Becker, representing Kansas, asked Bucci about the option the state offers to hold telephonic hearings with the secretary of state’s office to discuss her circumstances. Bucci said she wasn’t allowed to use her phone while she was at work at the prison and she would have had to run to a car to make such a call. She also said she would not have even known how to call the secretary of state’s office, nor did she know how long such a call would take.

3/6, 10:38 a.m. CT — “Taking a bazooka to a fly:” Opening statements kick off trial: After some motions were addressed, the Kansas voter registration proof-of-citizenship trial began in earnest with opening statements Tuesday morning.

The ACLU’s Dale Ho, an attorney for the plaintiffs, was first at the lectern. He laid out the three-pronged argument that the challengers he is representing are making: That the proof-of-citizenship requirement disenfranchises eligible voters, that there is no evidence of a systemic issue of mass non-citizen voting, and that there are other ways that Kansas can keep its voter rolls clean.

Enforcing this law, Ho said, is like “taking a bazooka to a fly.”

Mark Johnson, a Kansas-based attorney representing another group of challengers in the case, was the next up. He is challenging the requirement on a constitutional basis. (The ACLU, meanwhile, is arguing that it violates the National Voter Registration Act).

He compared Kansas’ law to the legislation statehouses pass banning flag burning, which, he said, play well politically but are quickly shot down by courts as unconstitutional.

Kansas Secretary of State Kris Kobach, who is representing himself in the lawsuit, was the last attorney to make an opening statement. He argued that the threat of non-citizen voting was significant, and that the state had discovered even more instances of non-citizens registering since it implemented the requirement.

“We know that the iceberg is much larger,” he said. He argued that the other ways suggested for Kansas to address the problem of non-citizens registering were not sufficient, and Kansans themselves did not find the requirement burdensome.

The trial is taking place in a federal courtroom in Kansas City. The courtroom was packed with public observers, and the overflow room had a couple dozen more observers in addition to the media covering the case.

3/6, 9:45 a.m. CT — A setback for Kobach right off the bat: Before the parties in the Kansas case could even make their opening statements, Secretary of State Kris Kobach got a setback. Judge Julie Robinson barred Kobach from submitting an exhibit showing the latest numbers of Kansans whose voter registrations have been suspended or canceled due to the proof-of-citizenship requirement that’s on trial this week.

The ACLU objected to the submission exhibit, because Kobach only turned over the latest numbers at 10:43 p.m. last night. Judge Robinson had set a deadline for such exhibits to be turned over to the opposing party of at least 24 hours before the trial started.

ACLU attorney Dale Ho also raised concerns that the challengers were unable to verify the numbers with the underlying data.

Kobach argued that there was no workable way for the challengers to have access to the underlying data to verify the numbers. They come from the state’s (ELVIS) Election.Voter Information System, which Bryan Caskey, a state elections official has a security clearance to have access to. (Caskey will testify later in the trial). Kobach noted that the security issues around the voter registration database have recently been in the news. (Ironically, Kobach’s effort to have states turn over their voter registration to the President’s now-defunct voter fraud commission created many of those headlines).

Regardless, Robinson is not allowing the defendants to submit the new numbers, because they violated the 24-hour deadline.

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