How A Blown Deadline Has Haunted Kobach In His Voting Law Trial

Kansas Secretary of State Kris Kobach listens and takes note as a judge declares in Shawnee County District Court that the state must count potentially thousands of votes from people who registered without providing documentation of their U.S. citizenship, Friday, July 29, 2016, in Topeka, Kan. Kobach had directed local election officials to count only their votes in federal races, not state and local ones. (AP Photo/John Hanna)
John Hanna/AP

It’s not every day you see trial lawyers try to do something that a judge has three times already told them they aren’t allowed to do.

But on Friday morning — on the fourth trial day in the case against Kansas’ proof of citizenship voter registration requirement — lawyers representing Kansas Secretary of State Kris Kobach tried again to introduce evidence that the judge had on two separate previous occasions blocked them from admitting.

“It’s out of order now to want to introduce new evidence as to those numbers,” Judge Julie Robinson snapped at the Kansas legal team.

The Kansas attorney, Garrett Roe, would try again, less than an hour later, once more without success.

Read the latest reporter’s sum-up (Prime access) on voting rights »

Kansas’ repeated run-ins with Robinson, and their inability to get the new evidence introduced, appear to have made what looked to be a steep hill for Kansas in the ongoing trial even steeper. The judge has already ruled against the law in a preliminary injunction.

The evidence is the updated numbers of people who are on a voter registration “suspense” list for not showing proof of citizenship, as well as those who had been moved off of it. To succeed in defending the requirement, the state must prove that it’s the least burdensome way of preventing non-citizen voting. Evidence that presumably shows that the state has shrunken the number of people who have been blocked from voting due to the law would likely help their case.

But Kobach blew a 24-hour deadline the judge had imposed for new evidence before the start of the trial.

“You didn’t jump through the hoops to make new numbers part of the evidentiary record in this case,” Robinson said Friday.

Kobach’s error was revealed first thing Tuesday morning, before even the opening statements, when his legal team attempted to submit the updated numbers as a demonstrative exhibit. The lawyers representing the challengers quickly objected, arguing that Kobach’s office had sent them the new numbers at 10:43 p.m. the night before, well after the deadline.

“The whole point of” the deadline, Robinson said, “is so everyone knows what they’re working with.”

Kobach’s team would try again Thursday afternoon, this time when they were questioning Bryan Caskey, an elections official under in Kobach’s office. The move to introduce the new numbers via Caskey’s testimony perturbed Robinson, who up until that point had been fairly patient with the Kobach team’s frequent inability to follow trial rules.

Her voice raised, Robinson told Kobach: “That’s not how trials are conducted.”

Kobach complained that without the updated list, the court was working with numbers that were “stale.” Robinson noted that in the two years that the case was being litigated, Kobach never sought to update the numbers.

“We’re not going to have a trial by ambush here,” Robinson said. “You’re stuck with what you provided to them by the deadline.”

Nevertheless, they would try again twice the following morning, when Roe asked for judicial notice of the updated suspense list numbers — essentially, to have them deemed to be facts not in dispute.

“I’ve already ruled that you’re not going to introduce new numbers about the suspense list,” Robinson said. “I’m not going to take judicial notice of those numbers.”

They made a fourth try when Roe asked Caskey about the voter registration system’s current suspense numbers. The ACLU, which is representing some of the challengers, quickly objected and Robinson blocked Kansas’ move.

Increasingly, Kansas’ best hope in the case appears to be at the appeals court stage. That’s likely why they have sought to get points into the record that Robinson has already said she will not taking into account for her ruling. For instance, they have sought to highlight that some of the law’s challengers have, since bringing the case, been registered to vote, even though Robinson has ruled that it won’t affect the challengers’ standing.

Robinson seemed to reference that tactic while rebuking their attempts to present the updated numbers on Thursday. She told Kansas’ attorneys she wanted her comments chastising them to be on the record for the appeal.

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