The day after Donald Trump was elected president, Kansas Secretary of State Kris Kobach, now the vice-chair of Trump's commission on voter fraud, told Trump's transition team of a proposal to change federal law to allow stricter requirements on voter registration.
Kobach's team was "putting together information on legislation drafts for submission to Congress early in the administration," Kobach wrote to transition team member Gene Hamilton in an email. "I have some already started regarding amendments to the NVRA [National Voter Registration Act] to make clear that proof of citizenship requirements are permitted (based on my ongoing litigation with the ACLU over this)."
The email was released on Friday as part of that ACLU lawsuit and was first published by the Huffington Post.
Amending the NVRA in such a manner "will lead to a dramatic reduction in access to voting," said Wendy Weiser, director of the democracy program at NYU's Brennan Center, in an interview. "Every time legal obstacles to restricting the vote have been lifted in recent years, we've seen substantial spikes in efforts to restrict the vote."
Passed in 1993, the NVRA contains a number of provisions intended to increase voter participation. Among other provisions, it requires states to allow voter registration at motor vehicle offices and by mail.
Kobach told the Daily Signal last year that every time an illegal immigrant votes, "it effectively cancels out a vote of a U.S. citizen," and said there is "huge potential" for those votes to alter the outcome of an election.
"Even if it’s just a handful of votes, it's still a huge injustice," he said.
Extensive investigations by state elections officials have found that non-citizen voting is vanishingly rare. "Based on state prosecution records, votes by noncitizens account for between 0.0003 percent and 0.001 percent of all votes cast," according to an analysis by the Brennan Center, a non-partisan think tank that works to expand voting access.
Conversely, a national survey sponsored by the Brennan Center in 2006 found that millions of Americans do not have access to documentary proof of their citizenship. In Kansas, thousands of voter registrations have been refused or put "on hold" because of failure to provide proper documentation under Kobach's SAFE Act.
Last September a federal appeals court blocked the proof of citizenship requirement in Kansas and two other states. The ACLU is currently suing the state of Kansas over the citizenship requirements. As that lawsuit unfolded, Kobach was photographed holding a document which included the text "Draft Amendments to the National Voter..." The rest of the text was obscured by Kobach's arm.
The ACLU filed a motion for Kobach to release those documents. Kobach attempted to argue that the documents were not related to the proof of citizenship requirement, but he was subsequently fined $1,000 by the federal court for making false claims about their contents.
In 2013, the U.S. Supreme Court struck down a similar proof of citizenship requirement by 7-2, ruling that under the Constitution, the federal National Voter Registration Act must take precedence over any state citizenship requirement. Amending the NVRA to explicitly allow state-level citizenship requirements would eliminate that conflict between state and federal law.
Critics of Kobach say the email proves the voter fraud commission is aiming to restrict voting access regardless of any findings it may make. "I think the email is wholly unsurprising," said Justin Levitt, elections expert at Loyola Law School."I won't be shocked as more proof emerges that the cake is already baked."
That commission is scheduled to have its first meeting this week.