Uncovering Kris Kobach’s Anti-Voting History

Above: President-elect Donald Trump and Kris Kobach, Kansas secretary of state, pose for a photo following their meeting in November 2016. Getty Images.

President Trump is expected to name Kansas Secretary of State Kris Kobach vice-chair of a new “Presidential Commission on Election Integrity,” a body the President has long promised to investigate supposed “voter fraud” issues in the 2016 election, and which will also be charged with looking into other problems with our voting system. Outside of Republican political circles, Kobach is hardly a household name. But his naming as vice-chair is very meaningful: For the better part of the last decade, he has been a key architect behind many of the nation’s anti-voter and anti-immigration policies.

Notably, Kobach has drafted and promoted several draconian laws, including Arizona’s controversial 2010 “show me your papers” law (which requires police to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” a person is not in the U.S. with lawful authorization), requirements for documentary proof of citizenship to register to vote (all of which have been tied up in court and administrative battles for years), and strict photo ID requirements to vote. He has also been one of the most vocal proponents of the notion that American elections are plagued by voter fraud.

Kobach endorsed President Donald Trump early, in February 2016, citing his tough stand on immigration. “For me, the most important issue in the Republican presidential contest is immigration and its effect on our national security,” Kobach said in a statement. “On that issue Mr. Trump stands head and shoulders above the other candidates.”[1]

But, because of the nature of his role as a secretary of state, Kobach’s public record in voting is extensive. He has a long and consistent history of pursuing severe policies despite undeniable evidence that they disenfranchise eligible citizens, and of making exaggerated voter fraud allegations. When President Trump made his sweeping allegations about millions of fraudulent votes being cast in the 2016 election, Kobach defended the groundless charge, which he could not marshal any evidence to do.[2]

As vice-chair of the new commission, he will play an influential role in shaping its priorities, procedures, and eventual recommendations. His record provides a guide for what might be expected.

Pre-Secretary of State Work

Kris Kobach was elected Kansas secretary of state in 2010. Long before his election, however, Kobach had been working to advance a partisan agenda with strains of anti-immigrant rhetoric. This history provides an important background to assess and interpret Kobach’s later actions on voting rights.

From 2001–2003, Kobach, a Harvard, Oxford, and Yale-educated attorney, served in the Department of Justice as a White House fellow and later as counsel to then-Attorney General John Ashcroft. While at the DOJ, Kobach was part of a policy shift that slashed the number Board of Immigration Appeals (BIA) judges from 19 to 11.[3] Many criticized the shift as a means to remove more pro-immigrant judges from the BIA, and it was ultimately largely reversed.

Kobach was also a key architect of the DOJ’s National Security Entry-Exit Registration System,[4] characterized by critics as a Muslim registry.[5] The program targeted screened legal immigrants from a specified list of countries, all but one of which were Muslim-majority, for extensive and ongoing surveillance.[6] The program was widely criticized for its racial, ethnic, and religious profiling, and was also regarded as “ineffective at producing terrorism-related convictions.”[7]

After the DOJ, Kobach returned to Kansas to teach law at the University of Missouri-Kansas City, a position he kept until his successful 2010 campaign for secretary of state (which followed an unsuccessful 2004 run for Congress). For a time during his professorship, Kobach also served as chair of the Kansas Republican Party. While there, he established a “loyalty committee” for party members. The Kansas press described the committee as a place to “weigh complaints of political misconduct by Republicans.”[8] Critics described it as a means to keep moderate Republicans from straying too far from a conservative party line.[9]

While at his teaching post, he litigated around the country in defense of anti-immigrant legislation. Beginning in the mid-2000s, Kobach went to court to defend local ordinances passed in Pennsylvania,[10] Missouri,[11] Nebraska,[12] and Texas[13] aimed at restricting the ability of people without papers to go about daily life, such as renting an apartment and seeking employment.

During this decade, Kobach often worked with the legal arm of the immigration restrictionist policy group, Federation for American Immigration Reform (FAIR), with which he remains affiliated.[14] With FAIR, Kobach brought suit challenging availability of in-state tuition rates for students without immigration papers in Kansas and California.[15] During the time when Kobach was affiliated with FAIR, the organization advocated for Arizona’s Proposition 200, a wide-reaching state ballot initiative that required citizens to show documentary proof of citizenship before registering to vote, and which required verification of citizenship before the distribution of public benefits. The documentary proof of citizenship requirement was struck down by the Ninth Circuit Court of Appeals and the Supreme Court as applied to individuals who use a federal mail-in registration form.[16]

In the mid- to late-2000s, Kobach was the key player in a campaign to push support for anti-immigrant laws at the state level. Most notorious of these was Arizona’s “show me your papers law,” or SB 1070. SB 1070, which Kobach is widely credited with drafting before its passage in 2010, created a new state crime for failure to have immigration papers on your person, and authorized police to inquire into the immigration status of any person they stopped if they had “reasonable suspicion” the person was an undocumented immigrant.[17] The law received widespread condemnation for the racial profiling this provision promoted and facilitated. The Supreme Court eventually struck down several portions of the law that created new state crimes.[18]

Kobach was also a primary drafter of Alabama’s HB 56, passed in 2011.[19] HB 56 included a similar “show me your papers” provision to the Arizona law,[20] a documentary proof of citizenship requirement before registering to vote,[21] and other harsh provisions aimed at immigrants, such as rental bans and authorization to inquire into the immigration status of school children.[22] Kobach takes credit for that law, [23] large swaths of which were struck down by an appellate court.[24]

Voter Fraud Platform as Secretary of State

Kobach’s 2010 campaign for secretary of state promoted the idea that voter fraud was happening at an alarming rate all over Kansas.[25] During his campaign, Kobach alleged there were as many 2,000 people adopting identities of dead people to vote in Kansas alone.[26] The Wichita Eagle, in an attempt to verify Kobach’s claims, looked at one county. The county’s chief election official said he knew of zero cases of attempted fraud or impersonation, and told the paper that to the extent there were any problems, it was the result of errors, not some conspiracy.[27]^,[28]

The sitting Secretary of State Ron Thornburgh — himself a Republican — responded during the campaign, noting there was “no evidence” to support Kobach’s claims. His office told the press that they had received “[fewer] than five” complaints, let alone proven instances, and that they thought the incidence of voter fraud was “very minimal.”[29]

Other Kobach claims could also not withstand scrutiny. For example, during his campaign he claimed there was a “very real possibility” that a ballot had been cast in the name of a deceased man named Albert Brewer. However, reporters found Albert Brewer alive in his home outside of Wichita.[30] The voter’s father, also Albert Brewer, was deceased, however. It appears likely that Kobach mixed up the two men. According to experts, this very issue — mixing up two individuals with the same or similar names — is often what underlies charges of “voter fraud.”[31]

Having laid the groundwork through disproven allegations during his campaign, once in office, Secretary Kobach persuaded the legislature to pass a strict photo ID law, among the nation’s first.[32] The 2011 law requires voters to show a photo ID to cast a regular ballot, and has been found by the nonpartisan Government Accountability Office to depress turnout in the state, particularly among African Americans and newly registered voters.[33]

After assuming office, Kobach repeatedly petitioned the legislature to give him something granted to no other secretary of state in the country: the power to prosecute election law violations.[34] Actual prosecutors warned legislators that the power to bring charges should not be handed over to someone whose office is not part of criminal law enforcement.[35] In pursuit of this prosecutorial power, Kobach told lawmakers he knew of 18 cases of “double voting,” and that more than 100,000 people were registered to vote in Kansas and another state.[36] He reportedly claimed he knew of 100 cases of voter fraud in the state.[37] Based on these assertions, lawmakers granted Kobach this power in 2015.[38] Yet, at the time of the announcement of the presidential commission, he had obtained a grand total of nine convictions in just under two years.[39]

Meanwhile, Kobach continues to use his position as secretary of state to make unsupported allegations of voter fraud. Kobach, as Kansas’s chief election official and a longtime participant in the public discussion over election integrity, knows better than anyone the truth about voter fraud: it is very, very rare. When it does happen, it is at times the work of insiders, such as party officials or election volunteers.[40] Voting by those who are not U.S. citizens — a longtime fixation of Kobach’s — is, while not non-existent, rare.[41] Impersonation fraud, where one goes to the polls to cast a vote as another person, is rarer still, as all studies and court opinions reviewing the matter have concluded. [42]

Nevertheless, the secretary has continued to make fraud allegations. Oftentimes, these assertions have gone far beyond Kansas. For example, in 2010, Kobach claimed 11,805 noncitizens were registered in Colorado and 4,947 voted. After further investigation, the purported number of potential noncitizen registrants was reduced to 155, and the supposed number of those who voted was reduced to 35.[43]

Kobach has alleged on multiple occasions, including in testimony to Congress 2015,[44] that a 2010 Missouri state representative primary election turned on “50 Somalis” who were “unable to speak English” and were all told to cast their ballots for a single candidate who ended up winning by one vote. But when the losing candidate filed a lawsuit, a court found that “[t]he credible evidence prove[d] that there was no voter misconduct and no voter fraud with regard to this election” — a ruling upheld as reasonable by an appeals court.[45] In his congressional testimony, Kobach attached an affidavit from that lawsuit to back his allegation, but failed to mention the appeals court’s assessment that the lower “court could reasonably conclude that the evidence fail[ed] to show that there was any fraud practiced as to even one vote.”[46]

Most recently, Kobach has supported President Trump’s false claim that millions of people voted illegally in the 2016 presidential election. Trump tweeted in late November 2016 that he, rather than Hillary Clinton, won the popular vote “if you deduct the millions of people who voted illegally.”[47] Days later, Kobach called this fictitious claim “absolutely correct,” estimating that “3.2 million aliens voted in the presidential election.”[48] In support of this allegation, he cited no evidence from this election but instead a widely debunked 2014 study based on internet responses.[49] (In fact, Kobach had earlier that day certified the results of the Kansas election to the governor, without any mention of instances of noncitizen voting.)

When Trump and members of his administration alleged that thousands of Massachusetts residents had been bussed into New Hampshire during the 2016 election to cast ballots against Republicans, it was Kobach whom they called upon to defend these assertions. He was unable to do so, admitting that he did not have evidence of that at the time, and pointing instead to the number of people nationwide who are registered to vote in more than one state, and to the handful of voter fraud cases he has brought in Kansas.[50]

Documentary Proof of Citizenship Advocacy

Kobach’s most high-profile crusade in the voting arena, however, has been over requiring people to provide documentary proof of citizenship before registering to vote. Under federal law, individuals registering to vote must affirm in writing that they are a United States citizen when registering to vote. A false assertion of citizenship on a voter registration form carries both severe criminal penalties and potential immigration consequences, including denial of citizenship.

Nearly a decade-worth of research has revealed that voting by noncitizens in U.S. elections is negligible. Multiple nationwide studies have uncovered only a handful of incidents of noncitizens voting.[51] Based on state prosecution records, votes by noncitizens account for between 0.0003 percent and 0.001 percent of all votes cast.[52] Election officials agree there is no serious problem of noncitizen voting in our elections.[53] And a recent Brennan Center report found that 40 of 42 studied jurisdictions reported no known incidents of noncitizen voting in the 2016 election.[54]

Despite the existing safeguards and the demonstrably low rate of noncitizen voter fraud, Kobach has operated for years as the country’s primary advocate for documentary proof of citizenship requirements. This means that people cannot successfully get on the rolls without providing a birth certificate, U.S. passport, or other document evincing citizenship. Research shows that as many as 7 percent of Americans do not have such documents readily available. And those without access to such documents are disproportionately minority citizens.[55]

Arizona’s Proposition 200, the law that Kobach-affiliated FAIR advocated for, required documentary proof of citizenship along with a host of other measures targeted toward minority and immigrant populations. This requirement was challenged all the way to the Supreme Court, which struck down the law’s documentary proof of citizenship provision as to those who used a federal registration form.[56]

The strict voter ID bill Kobach championed in his first year as secretary of state also contained documentary proof of citizenship requirements. Because of the Supreme Court decision on Arizona’s documentary proof of citizenship law, Kobach had to ask the Election Assistance Commission (EAC), the federal agency that oversees what information goes on the federal form used to register voters, for permission to enforce this requirement on voters who use the federal form and therefore fully implement his law. But the EAC declined Kobach’s request, and similar requests from other states, multiple times.[57]^,[58]

However, Kobach’s luck changed when his former colleague, Brian Newby, was installed as executive director of the EAC in November 2015. Prior to this role, Newby had been serving as a Kansas election official, appointed by a previous Kansas secretary of state and reappointed by Kobach. Newby acknowledged his relationship to Kobach in emails to the secretary of state, assuring him: “I also don’t want you thinking that you can’t count on me.”[59] Two months into assuming his new position, Newby unilaterally — without consulting the commissioners, who are statutorily tasked with deciding EAC policy — gave Kansas permission to fully enforce its documentary proof of citizenship law.[60]

This decision, and Kobach’s enforcement of the law in the 2016 election cycle, are the subject of at least four separate lawsuits.[61] Over the course of its implementation over the past several years, it has blocked tens of thousands of would-be voters from registering.[62]

But in 2016, several courts stepped in to help Kansans register and vote. In May, a federal court in Kansas ruled against the law and ordered Kobach’s office to register people who signed up to vote at the DMV but did not provide documentary proof of citizenship.[63] That decision was upheld by the Tenth Circuit last fall.[64]

Despite a clear court order, however, it soon emerged that Kobach was not, in fact, registering these voters as required. Instead, Kobach created a separate classification for these tens of thousands of would-be voters. When they went to look for themselves on the state’s online voter registration look-up, their names were nowhere to be found.[65] Kobach instructed election officials to give these voters provisional ballots only, rather than regular ballots.[66]

The court scheduled a contempt hearing after discovering Kobach’s defiance, but the secretary avoided this process by quickly settling with the plaintiffs in the case.[67] Concurrently, a state court ruled against Kobach’s attempt to permit citizens affected by these cases to vote only in federal elections, ordering him to allow them to cast their full ballots.[68]

Crosscheck

One of Kobach’s farthest reaching projects is a multi-state program he runs through his office: the Interstate Voter Registration Crosscheck (IVRC), a database meant to identify people who may be registered in multiple states. On its face, IVRC serves the reasonable goal of helping states keep their voter rolls up to date. But in practice, Kobach’s leadership has led IVRC to be more useful as a tool for justifying voting restrictions than as a way to accurately maintain registration.

Here’s how it works, according to a 2013 presentation by Kobach himself: participating states upload their voter registration databases to a server run by the Kansas secretary of state. His office pulls each state’s data, compares it to the data from other states to seek out duplicate records, and makes the results available to the uploading state. The program also attempts to identify voters who cast ballots in more than one state.[69] And it’s run completely by Kansas. As Kobach told the Lawrence Journal-World in 2014, “it’s a state-run program that Kansas has developed and it’s a service for the whole country.”[70]

Kobach’s predecessor started IVRC in the mid-2000s, but the current secretary of state has overseen its dramatic growth by promoting the program as an anti-fraud measure. According to that 2013 presentation, which Kobach made to Indiana election officials, IVRC compared 30 million records in 2010, 85 million in 2012 after he took office, and was projected to compare 110 million records in 2014 — all reviewed by Kansas.[71]

And with Kobach at the helm, IVRC has produced problematic results. Its methods lead to false positives — like in Pennsylvania, where the system reported more than 300,000 potential double voters.[72] In that case, Kobach reportedly conceded there were issues.[73] The system also has been found to over-represent minority voters. A Rolling Stone investigation asked a database expert to review IVRC records from certain states. He found the system flagged one in six Latinos, one in seven Asian Americans, and one in nine African Americans as potential double registrants in the states examined.^[74]

For at least two states, the flaws were too much. Florida and Oregon have withdrawn from IVRC in recent years, with the latter’s secretary of state explaining they had to drop the program because “the data we received was unreliable.”[75] Kobach stands by it, using its data in legislative testimony to justify his restrictive agenda.[76] But recent history suggests that his project’s principal result is to compound errors, resulting in thousands of voters improperly removed from the rolls. IVRC’s own outcomes indicate that, like other voting restrictions, it is a solution in search of problem: for the many millions of records compared by Kansas around the country, as of late 2013, a total of 14 had been referred to prosecutors.[77]

***

As vice-chair of a new Presidential Commission on Election Integrity, Secretary Kobach could have a platform for his exaggerated and debunked claims. His record in elections and voting reveals that he does not stand up for voters; rather, he has spent the last decade pursuing policies that are harmful to many Americans — particularly those Americans who are not white, who are elderly, or who are low-income. Americans should be wary, and should be aware of this record, now that President Trump has chosen to put Kobach in this role.