Inside a federal courtroom in Washington earlier this year, the presiding judge peered down in disbelief as a Justice Department official told him that the Obama administration would not defend a tiny elections agency but was instead siding with civil rights groups suing the government.
“Unprecedented,” U.S. District Judge Richard J. Leon said from the bench. “I’ve never heard of it in all my years as a lawyer.”
From the back of the packed courtroom emerged someone else to argue for the federal agency: a tall, clean-cut figure in a dark suit, carrying a sheaf of papers, who had traveled more than 1,000 miles that day to make his case.
“Your honor, Kris Kobach, Kansas secretary of state,” he told the judge. He went on to defend the actions of the director of the elections agency who had single-handedly rewritten voter registration rules, prompting an immediate challenge from civil rights groups.
Kobach, 50, first entered the national spotlight several years ago when he advised Mitt Romney on the idea of “self-deportation” for illegal immigrants during the 2012 presidential campaign. A former chairman of the Kansas Republican Party, Kobach also wrote Arizona’s strict “show me your papers” immigration law, and he has helped lead the fight against President Obama’s executive actions on immigration.
But now Kobach is the gladiator in a different battle — a major figure in a national movement to add more requirements for Americans to vote or register to vote. Since the Supreme Court struck down in 2013 a key part of the Voting Rights Act, Kobach has been at the center of many legal skirmishes over voting requirements that have popped up nationwide.
Sixteen states have made changes that will be in effect for the first time in a presidential election, many of them requiring photo identification at the polls. Kobach has gone a step further — pushing for states to demand proof of citizenship, such as a passport or a birth certificate, before allowing people to even register to vote. Election-law experts say the effort could reduce turnout in November.
In Kansas, according to the American Civil Liberties Union, about 37,000 people who were trying to register to vote were on a “suspense list” last fall and were barred from voting unless they produced documentation. Nearly 90 percent of them were because of the proof-of-citizenship requirement, the ACLU said.
And it was just such a citizenship measure that drew Kobach to the federal courtroom in Washington.
A new executive director of the bipartisan Election Assistance Commission (EAC), a little-known federal agency that is supposed to help states run elections, unilaterally altered the instructions on the federal voting registration form for three states — Alabama, Georgia and Kansas — requiring residents to show documents that prove they are U.S. citizens before they can register to vote.
The director, Brian D. Newby, also from Kansas and a former colleague of Kobach’s, made the change in late January without consulting the agency’s three commissioners, bringing the matter to a vote or explaining his actions, according to the League of Women Voters and other civil rights groups that sued the agency on grounds that the change will make it harder for thousands of Americans to vote this fall.
“This is not Russia, this is not Nazi Germany,” Michael Keats, the attorney representing the groups, told the judge. “We provide reasoning. We explain our decisions. . . . We don’t do that in this country. . . . People in real time are trying to register. The confusion this is causing, the chilling effect that this is causing, is real.”
But Kobach said the EAC director made the voting-form change after Kobach requested it, arguing he had evidence that in Kansas there were “a significant number of aliens who became registered to vote because there were no proof-of-citizenship requirements.”
“Eighteen cases, newly discovered cases of aliens in one county . . . alone,” Kobach told the judge. “That was a lot of evidence.”
Most secretaries of state are longtime bureaucrats who focus quietly on overseeing their state’s election processes and become known to the wider public only if something goes awry on Election Day.
Kobach is different. With degrees from Harvard, Yale Law School and Oxford University, where he earned a doctorate in politics, he has turned his perch in Kansas into a powerful national platform for his ideas.
In a recent interview in his Topeka office, Kobach defended his efforts to require proof of citizenship from voters.
“My view is that it should be easy to vote but hard to cheat,” said Kobach, a former law professor at the University of Missouri at Kansas City. “The reason we have to do this is there is a significant problem in Kansas and in the rest of the country of aliens getting on our voting rolls. With so many close elections in Kansas, having a handful of votes that are cast by aliens can swing an election.”
When asked for examples, Kobach said the “most notorious case” occurred in 1997 in a referendum on hog farming. According to him, a county clerk testified that more than 50 employees of a hog operation just over the line in Oklahoma sent in registration applications, many with made-up addresses in a Kansas county. On the day of the election, the county clerk said the noncitizens from Oklahoma were bused into Kansas in a van to vote. The referendum measure did not pass, and no charges were filed.
Election-law experts say that there is no evidence of significant voter fraud in this country and that Kobach is intentionally trying to make it more difficult for minority voters who tend to vote Democratic. In perhaps the most comprehensive study of voter fraud in the nation, a study of allegations of voter fraud from 2000 to 2014 by Justin Levitt, a California law professor — who is now the deputy assistant attorney general in the Justice Department’s Civil Rights Division — found only 31 “credible allegations” of voter impersonation out of 1 billion ballots cast.
“He’s a provocateur,” said Richard L. Hasen, an election-law expert at the University of California at Irvine. “Kobach has been a leader nationally in making irresponsible claims that voter fraud is a major problem in this country.”
A person registering to vote uses a state or federal form, often at the Department of Motor Vehicles or online. The federal form asks residents to swear that they are U.S. citizens. Until recently, there was no need to submit documents.
In 2011, Kansas Gov. Sam Brownback (R) signed a law — crafted by Kobach — with a strict voter ID requirement. Brownback has since given Kobach power to prosecute voter-fraud cases, a power held by no other secretary of state, according to the ACLU.
Beginning in 2013, the Kansas voting law also required anyone who registers to vote to prove through documentation that they are a U.S. citizen. (Kobach has a framed copy of the law on his office wall.)
Kobach calls the Kansas voting law’s burden on voters “so small as to be virtually nonexistent.”
“The only burden is finding your birth certificate in your desk or wherever you keep it and taking a picture of it with your smartphone or making a copy and sending it in to the county or taking it in yourself,” he said.
But two years after the Kansas law passed, Kobach hit a roadblock. In June 2013, the Supreme Court struck down a “proof of citizenship” law in Arizona, similar to the one in Kansas. The late justice Antonin Scalia, who wrote the majority opinion, said states could not impose a documentary proof-of-citizenship requirement for those who register to vote using the federal form.
Undeterred, Kobach decided that Kansans who used the federal form when registering to vote still had to provide the proper documents or not be able to vote in state and local elections.
The ACLU sued Kobach, citing the Supreme Court’s ruling. In January, a Kansas state court ruled in favor of the ACLU.
Again, Kobach did not back down. Potentially, there was a way out of this seeming legal dead end — one that had been pointed out by Scalia in his majority opinion from 2013.
In his opinion, Scalia had given Arizona officials — and Kobach — a virtual road map about the next step they should take. A state that wanted to raise the bar for voter registration requirements could turn to the EAC.
“A state may request that the EAC alter the federal form to include information the state deems necessary to determine eligibility,” Scalia wrote.
Justice Samuel A. Alito Jr. dismissed that avenue. “The EAC currently has no members, and there is no reason to believe it will be restored to life in the near future,” he wrote.
Congress created it to assist states with elections after the 2000 presidential election controversy in Florida. It is also supposed to oversee the federal online voting form.
The agency has virtually no regulatory power, and from 2011 through 2014, all four commissioner positions were vacant, so the agency could not conduct any public meetings.
Obama was supposed to nominate commissioners — two Republicans and two Democrats. Currently, there is only one Democrat and two Republicans. To change policy, three commissioners must be in agreement, and the White House has not nominated another Democratic commissioner.
The agency also had no executive director until the three commissioners chose Newby last fall. At that time, Newby was a Kansas county election commissioner whom Kobach reappointed to his state job.
When he was a finalist for the job of EAC executive director, Newby wrote an email to Kobach saying he never would have been considered for the position without his support, according to the Associated Press, which obtained it through a public-records request.
“I think I would enter the job empowered to lead the way I want to,” Newby said in the email to Kobach, also noting that he was friends with two of the EAC commissioners.
“I wanted you in the loop, in part because of other issues in the past with the EAC,” Newby continued. “I also don’t want you thinking that you can’t count on me in an upcoming period that will tax our resources.”
Kobach had previously asked that the EAC change its federal form to require proof of citizenship, but his request was denied. Two weeks after Newby joined the agency in November, Kobach wrote a letter to ask again. Newby’s answer was yes.
A couple of months later, Newby sent letters to officials in three Republican-led states — Alabama, Georgia and Kansas — and changed the instructions by adding proof-of-citizenship requirements to the forms used in those states.
Newby said he did not consult all the commissioners since the changes were not related to “policy” and did not need their approval.
Newby did not respond to a request for an interview. But in a deposition, he said he changed the form after receiving a spreadsheet from Kobach that appeared to show new evidence of voter fraud in one Kansas county.
The spreadsheet, listing “Kansas aliens,” showed two categories of people. The first had seven individuals Kobach said were noncitizens who wound up on the voting rolls before Kansas’s proof-of-citizenship law took effect in 2013. In six of the seven cases, the people never voted.
The second group included 11 people who Kobach says were not citizens and were stopped from registering to vote, with at least one openly telling the election office he was not a citizen.
None of the people Kobach cited was charged.
After Newby’s decision, the single Democratic commissioner, Chairman Thomas Hicks, released a statement calling for Newby’s action to be withdrawn. Hicks said the change “contradicts policy and precedent previously established by this commission.” The two other commissioners did not respond to requests for an interview.
Newby acted “without legal authority, without public notice and in direct opposition to the Election Assistance Commission’s repeated rejection of such changes,” said Dale Ho of the ACLU, which has also sued the EAC. “His abuse of power is unacceptable and illegal.”
The League of Women Voters and several other civil rights groups sued the EAC, arguing that the change will make it harder for minorities, students and elderly people to vote because they are more likely to have trouble tracking down a birth certificate or passport.
“Voters should not have to face an obstacle course in order to participate in our democracy,” said Elisabeth MacNamara, the league’s national president.
The case against the EAC in federal court could take at least six months to wind through the legal system with district court hearings, briefs and a possible appeal to the D.C. Circuit, which means the requirement of proof of citizenship could stand in three states for the presidential election.
“Is this going to be resolvable between now and November?” Judge Leon said to the lawyers from both sides at the end of the most recent hearing.
“Think about it. It’s a very practical problem.”