KANSAS CITY, KANSAS — A proposal Kansas Secretary of State Kris Kobach took to a meeting with then-President-elect Donald Trump in November 2016 included a proposal to amend the National Voter Registration Act (NVRA) to “promote proof-of citizenship requirements.”
The phrase referred to an idea Kobach was seeking to propose to incentivize states to enact their own proof of citizenship requirement, Kobach said in a deposition video played at the trial for a challenge to Kansas’ version of the requirement.
The original NVRA encouraged states to adopt same-day registration by waiving for those states some of the NVRA’s provisions. Kobach’s idea was that a hypothetical newly amended NVRA would have provisions that would be waived for states if they adopt a proof of citizenship voter registration requirement.
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Kobach said in his deposition that in his meeting with Trump — which included top members of Trump’s incoming administration — they did not get to discuss that proposal. A copy of the proposal was handed to all of the meeting participants.
Kobach said in the deposition that the topic of non-citizens registering to vote was discussed in general terms.
Over the course of the trial, Kobach’s legal team fiercely fought the playing of the video in the courtroom. Right before it was played, they successfully sought for it not to be included as a public exhibit. (The transcript of the deposition will be in the transcript of the trial instead.)
A portion of the transcript of the deposition had been previously unsealed, but the video that was played also went into portions of the deposition that until this point have been made public.
Kobach was photographed with Trump at a November 20, 2016 meeting at Trump’s golf resort in New Jersey holding an outline for his “DEPARTMENT OF HOMELAND SECURITY KOBACH STRATEGIC PLAN FOR FIRST 365 DAYS.”
From the photograph could be seen a line from the proposal to “Draft Amendments To” what appeared to be the National Voter Registration Act, the law that the ACLU alleges Kobach’s proof-of-citizenship requirement violates.
Kobach was ordered by the court to turn over that and other documents related his proposal to amend the NVRA, and sit for a deposition about the documents, producing the video that was played Friday.
In the video, Kobach denied that a proposal he had written in the summer or fall of 2016 and shared with the members of his staff to amend the NVRA was written with the intent of superseding a preliminary injunction that had been placed on his requirement. He also denied that, for the proposal, he cribbed language from an ACLU brief laying out how the NVRA would need be amended for his requirement to be permissible — even though his language and the ACLU’s was identical. He called the idea that he copied the ACLU’s language “inconceivable.”
He said it was “interesting” that the language was so “similar.”
“I don’t consult your legal writing” in anything I do, Kobach claimed to Dale Ho, the ACLU attorney deposing him.
He said that the proposal was only for the “contingency” that the ACLU was successful at the appeals court in their lawsuit. and the Supreme Court decided not to take up the case. (Kobach indicated that he believed that if Supreme Court took up the case, it would likely side with him).
Kobach was also asked about an email he sent Gene Hamilton, who like Kobach was on the Trump transition, days after the election. After mentioning “legislation drafts” the transition team was putting together “for submission to Congress early in the administration,” he said “some already started” for the NVRA and proof-of-citizenship requirements “(based on my ongoing litigation with the ACLU over this)”.
Kobach was asked in the deposition if the NVRA proposal the email referred to was among legislation he was seeking to submit to Congress early in the administration.
He said no, and reiterated that he had no intention of pushing the proposal before the case was fully litigated. He said that “legislation drafts” for early in the administration was a reference to the other proposal mentioned in the email, concerning in-state tuition for undocumented immigrants. He also said he didn’t know of anyone on the transition drafting legislation for his NVRA proposal to be submitted in Congress.
Throughout the video, Kobach looked frustrated, exasperated and annoyed. He was often looking down, and at times he rested his head on his fists.
Then the video turned to Ho’s questions about Kobach’s Nov. 20 meeting with Trump. Some of that back-and-forth was in the portion of the transcription already unsealed.
Kobach said he met with Trump to discuss his plan as well as the possibility of Kobach becoming Trump’s DHS Secretary. He was asked if the proposal about promoting proof of citizenship was a reference to the draft proposal he had shared with his staff.
He said that a “yet uncreated” amendment to “modernize” the NVRA might include such a provision — again, stressing that it would only be necessary if he lost the case at the appeals court level and the Supreme Court didn’t take it up.
Asked about what he meant by “promote” proof of citizenship, Kobach referenced a provision in the original NVRA that allowed states with same-day registration to waive some of its requirements. He said that was a way for the NRVA to incentivize states to adopt same day registration.
The hypothetical amendment to the NVRA might work the same way, he suggested.
Ho asked what parts of the NVRA states would be allowed to waive. Kobach suggested that this hypothetical amendment to the NVRA would impose new mandates, but states with proof-of-citizenship requirements would perhaps be able to opt out of some provisions. He said that even though it appeared on a proposal for the first 365 of the Trump administration, that hypothetical NVRA amendment wasn’t meant to fall within the first 365 days.
Kobach said they did not ultimately discuss this proposal at the meeting, which included Reince Priebus, Steve Bannon, Stephen Miller and Jared Kushner.
He said they did discuss the “problem” of non-citizens voting illegally and the potential that illegal votes could swing a close election. A week later, Trump would suggest illegal voters were what swing the popular vote to Hillary Clinton.
Trump’s baseless voter fraud claims would help lead to the creation of a now-defunct voter fraud commission — a commission that Kobach led.
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