Kansas Secretary of State seeks to deliver a devastating blow to voting rights

Kira Lerner Political Reporter, Think Progress

When Tad Stricker moved to Kansas from Illinois in 2013, he procrastinated getting a new driver’s license. He was busy with work and settling into his new city, and wasn’t eager to spend a day at the Department of Motor Vehicles. But when the registration deadline for the upcoming gubernatorial election approached, he decided it was time.

When he first arrived at the local DMV, he was told he didn’t have the proper documentation to get his license, so he hurried home to collect several forms of ID and proof of address.

“I grabbed every piece of document that I could find in my house,” he told ThinkProgress. “I grabbed mortgage statements, I grabbed tax documents, I grabbed my birth certificate, I grabbed utility bills, literally everything I could get my hands on to prove I was who I said I was.”

Back at the DMV, he was told he’d receive his permanent license and voter registration card in the mail.

“I left the DMV that day under the impression that I was registered to vote,” he said. The license arrived in the mail, but the voter registration card never did.

It wasn’t until Election Day in November 2014, when he went to cast a ballot near his home in Sedgwick County, that he realized he wasn’t on the voter rolls. An elections official told him he would have to cast a provisional ballot. Stricker would later find out that his registration has been put on a suspended list because he did not provide a document to prove his U.S. citizenship when he registered. Nobody at the DMV had mentioned to him that he was required to show a birth certificate, passport, or other document to verify his citizenship to be added to Kansas’ voter rolls.

Kansas began to require documentary proof of citizenship from all Kansas residents when they register to vote in 2011, though courts have since blocked that law. The state passed the requirement after Kansas Secretary of State Kris Kobach (R) took office and began pushing for laws he claimed would protect against the threat of non-citizens casting ballots.

Since 2011, Arizona, Alabama, and Georgia have all passed proof of citizenship laws similar to the one Kobach wrote in Kansas. Courts have blocked all three states’ laws.

Now the Kansas law could meet a similar fate. The American Civil Liberties Union filed suit in 2016, claiming the law violates the National Voter Registration Act of 1993, also known as the Motor Voter Law. In October 2016, the United States Court of Appeals for the Tenth Circuit upheld a temporary injunction that requires Kobach to register voters without proof of citizenship until the case is decided. In that order, the court said the law creates a “mass denial of a fundamental constitutional right.”

Starting Tuesday, Kobach will have to defend his law in a federal courtroom, as the ACLU attempts to prove that it is unconstitutional. Over about a week, the ACLU will question Kansas voters in court over the discriminatory effects of the law. Kobach, who is representing himself, will call as one of his witnesses a researcher whose work has been discredited time and time again.

“Kobach’s position is that states can require any kind of documents they want from people when they register to vote,” Dale Ho, the director of the ACLU’s Voting Project and an attorney for the plaintiffs, told ThinkProgress. But the Motor Voter Law was passed to prevent just that, Ho said.

According to the ACLU, the Kansas law blocked more than 35,000 people in that state from casting a ballot between 2013 and 2016 — about 14 percent of all new voter registrations. But if Kobach prevails, the decision would have implications beyond Kansas.

A ruling in favor of the proof of citizenship law could set an example for other states hoping to set new, more stringent requirements on citizens seeking to register to vote. As the ACLU explains, a uniform system of voter registration under the NVRA could be turned into a “patchwork.” Kobach’s ultimate goal is to gut the NVRA and enact a national proof of citizenship requirement.

Ho warns that a ruling in Kobach’s favor would spell disaster for Americans’ right to vote.

“If Kobach prevails, it’ll blow a hole right through the Motor Voter law,“ he said. “It’ll transform Motor Voter and completely undermine that system and pave the way for a patchwork of laws and restrictions.”

Who is Jesse Richman, Kobach’s star expert witness?

This week, Kobach will likely argue that his proof of citizenship law is necessary because, he claims, a significant number of non-citizens have and will continue to cast ballots in Kansas elections.

Much of Kobach’s case rests on the work of Jesse Richman, a professor of political science at Old Dominion University in Norfolk, Virginia. Though he is relatively unknown outside academic and voting-rights circles, Richman’s work has for years formed the bedrock on which conservative lawmakers have built up claims that millions of non-citizens vote illegally and therefore decide elections in favor of Democrats.

Richman is best-known for a 2014 article that used the Cooperative Congressional Election Study — an online survey of 32,800 adults’ political views — to estimate how many non-citizens voted in the 2008 general election.

Richman and his two co-authors concluded that between 38,000 and 2.8 million non-citizens voted in 2008. The paper also argued that “non-citizen voters” lean left, and it made outlandish claims about their impact on Democrats’ 2008 – 2010 congressional majority.

“Non-citizen votes likely gave Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health care reform and other Obama administration priorities in the 111th Congress,” Richman and his co-authors wrote.

Those claims drew a lot of attention — especially on the right, where they seemed to confirm longstanding fears about voter fraud and the effect new immigrants are having on American society. But the facts behind those claims began to unravel just as quickly.

Richman and his colleagues based their estimates on a sample of just 38 people out of 32,800 in the Cooperative Congressional Election Study who said they were non-citizens and that they voted. Of those 38, the survey was able to confirm that five actually did vote. From there, Richman and his co-authors extrapolated that between 0.2 and 2.8 percent of all non-citizens living in the U.S. voted in 2008.

There are several glaring problems with these findings, according to Brian Schaffner, a professor of political science at the University of Massachusetts Amherst who co-runs the Cooperative Congressional Election Study.

First, Schaffner said, many of the respondents who said they were non-citizens are probably citizens who clicked the wrong button. Richman and his co-authors argued that people who said they were non-citizens in the survey shared demographic and ideological characteristics with other non-citizens. But Schaffner said he and his colleagues re-contacted many of those supposed non-citizens, who confirmed that they’re citizens who answered the question incorrectly.

“Some people just click the wrong button, basically,” Schaffner told ThinkProgress. “When we account for that, we can’t find any non-citizen voters, basically.”

The second problem is the small sample size. Schaffner says it’s not accurate to extrapolate out to every non-citizen in the country from a sub-sample of just 38 respondents in a survey that isn’t representative.

As part of the Kansas case, Kobach commissioned Richman for a statistical analysis of noncitizen voting in the state. It came to light for the first time last April, after ThinkProgress obtained a copy. As ThinkProgress reported then, it extrapolated from very small, non-representative samples to come up with six separate estimates for Kansas’s non-citizen voting rate.

In one of the estimates, which Kobach quotes widely, Richman found six potential non-citizen voters in a sample of 37 noncitizens. Using those figures, he estimated 18,000 potential noncitizen voters across Kansas.

But “no self-respecting social scientist would try to make an inference from such a small response to a survey,” Schaffner said.

Schaffner and more than 190 other political scientists wrote an open letter in January 2017 that was heavily critical of Richman’s research and asked that it “not be cited or used in any debate over fraudulent voting.”

That hasn’t dissuaded Kobach or White House senior policy advisor Stephen Miller: Both have used Richman’s research to support Trump’s claim that millions of non-citizens voted illegally in 2016, tipping the popular vote to Democratic candidate Hillary Clinton.

“I think it’s in excess of a million if you take the entire country, for sure,” Kobach said of noncitizen voting during an appearance on Fox Business Network in February 2017.

Richman rejected that claim during a sworn deposition in the Kansas case. He painted himself as a victim of both “weak, sometimes baseless” criticisms from the left and overblown uses of his research from the right.

“I’ve been trying to fight a two-front battle with distortions of it,” Richman said in the deposition.

Richman’s analysis in the Kansas case took pains to argue that any non-citizen voting is a serious concern because it could swing an election with a very small margin of victory — especially at the state or local level. But some of Richman’s other writing seems to conceded that non-citizen voting is not a serious problem.

“[A]lmost all elections in the U.S. are not determined by non-citizen participation, with occasional and very rare potential exceptions,” Richman said in a 2016 blog post.

For his part, Kobach has defended his interpretation of Richman’s research and his own public comments about millions of non-citizens potentially voting across the country.

“Richman’s analysis, I think, is very good, both in our case and in his 2014 article,” Kobach told ThinkProgress last April.

Kobach’s other key experts are short on expertise and credibility

Also on Kobach’s expert witness list is Hans von Spakovsky, a fellow at the conservative Heritage Foundation and former Republican commissioner on the Federal Election Commission. He will likely attempt to bolster not only Kobach’s claim that voter fraud is rampant in Kansas, but that voter fraud is prevalent across the country.

As a member of President Trump’s now-defunct Presidential Advisory Commission on Election Integrity, von Spakovsky — who tried to keep Democrats off the panel — was a driving force behind the panel’s efforts to push for suppressive national voting laws.

“We expect Hans von Spakovsky to trot out his usual falsehoods and exaggerations about non-citizen registration and voter fraud,” Ho said.

In January, a federal judge ruled that von Spakovsky does not have the direct knowledge or academic training needed to argue some of the claims he hoped to make before the court, including testimony that a survey could prove Kobach’s law is not a burden to potential voters.

“It is clear that von Spakovsky is not qualified to testify as an expert about this survey,” Judge Julie Robinson wrote.

He will still be permitted to testify about other matters.

Also included in Kobach’s expert list is Steven Camarota, director of research for the Center for Immigration Studies (CIS), an anti-immigration think tank in Washington, D.C. that the Southern Poverty Law Center calls a hate group.

“Camarota doesn’t even have any background or experience when it comes to voting and registration,” Ho said, “But he’s going to come in and say that the law hasn’t affected voter participation in Kansas, which is well beyond the scope of any kind of relevant background or expertise that he has.”

Pat McFerron, an Oklahoma-based political pollster, is another of Kobach’s witnesses. McFerron drafted the survey results that von Spakovsky used in his expert report. McFerron will likely make the claim that most Kansas citizens have birth certificates.

“We don’t dispute that,” Ho said. “Most people do have birth certificates. The issue is whether or not people are carrying them around with them.”

The ACLU intends to highlight voters who have been or could be disenfranchised because of the law, including young voters and voters of color, to convince the court that the law is discriminatory and unlawful.

“Even though most people have these documents, there are some people who don’t and that means they’re going to pay some money for it, and that’s not constitutional,” Ho said. “That’s the problem.”

Tad Stricker acknowledges that as a 39-year-old, property-owning white man, he is not the typical disenfranchised voter. But his experience being told he could not vote made him realize the scope of the harm that can be caused by proof of citizenship laws.

“My experience is something that really could happen to anyone,” he said. “If this can happen to me — I have proof of citizenship, I was born in the United States, I own a home, I am a contributing member of society — this can literally happen to anybody. That to me is the scariest thing.”

Kira Lerner is a Political Reporter for ThinkProgress. She previously worked as a reporter covering litigation and policy for the legal newswire Law360. She has also worked as an investigative journalist with the Chicago Innocence Project where she helped develop evidence that led to the exoneration of a wrongfully convicted man from Illinois prison. A native of the Washington, D.C. area, Kira earned her bachelor's degree at Northwestern University's Medill School of Journalism.

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