POLITICS
05/03/2018 9:45 PM AEDT | Updated 06/03/2018 6:07 AM AEDT

Trump's Voter Fraud Czar, And His Claims About Illegal Voting, Are About To Go On Trial

“This could really be in a lot of ways the case where we really put the evidence of fraud on trial in this country,” said the ACLU’s Dale Ho.

In 2013, Donna Bucci, a woman in her 50′s living in Wichita, Kansas, went to renew her driver’s license. Bucci had been Kansas resident for a few years, and decided to use her trip to the DMV as an opportunity to register to vote while she was there.

Bucci didn’t need to prove she was a citizen to renew her license (Kansas says an expiring license is good enough). But shortly after she registered, she received a phone call and a letter in the mail saying her voter registration was still pending because she hadn’t proved she was a citizen. Bucci, who was born in Maryland, didn’t have a copy of her birth certificate or any of the other documents, like a passport, to prove she was a citizen. She was working a minimum wage job at a correctional facility at the time and couldn’t afford the $20 to get her birth certificate from Maryland. Because she couldn’t prove she was a citizen, Kansas kicked her off the voting rolls.

Earlier in the same year that Bucci registered, Kansas implemented a law requiring people to prove their citizenship when they register to vote. Spearheaded by Kansas Secretary of State Kris Kobach (R), officials said it was necessary to prevent noncitizens from getting on the voting rolls. Kobach put anyone who didn’t prove they were a citizen on a “suspense list” and purged them from the rolls if they couldn’t prove it, including Bucci.

In 2016, Bucci joined five other Kansans to sue Kobach and challenge the law. They say the law is unnecessarily restrictive and violates the National Voter Registration Act (NVRA), a 1993 law that requires states to offer people the opportunity to register at DMVs and other state agencies. The NVRA says when someone registers to vote at the DMV, the state can only ask people for the minimum amount of information necessary to assess whether they’re eligible.

Mike Segar / Reuters
President Donald Trump has pointed to Kansas Secretary of State Kris Kobach (R) as someone who can justify the president's claims about widespread voter fraud.

While the Kansas law might not pose a hurdle to anyone with easy access to a passport or other proof of citizenship documents, the plaintiffs say that it targets young people, who may move around a lot, as well as the poor and minorities who don’t have access to proof of citizenship documents or can’t pay to get them. Arizona, Georgia and Alabama have also sought to impose proof of citizenship requirements on new voters.

Trial in the case begins Tuesday in Kansas City. The Kansas law has been on hold since 2016, when a federal judge stepped in to issue a temporary injunction ordering Kobach to register 18,000 people who had tried to register at the DMV but failed to prove their citizenship. At the time of the judge’s ruling, there were over 32,000 people in the state whose registration, like Bucci’s, was in limbo. A federal appeals court upheld the judge’s decision, saying Kansas and Kobach needed to show the current practice of allowing people to swear they were citizens under penalty of perjury wasn’t doing enough to prevent noncitizens from voting.

The case, which will determine whether Kansas can continue to block tens of thousands of people from registering to vote if they can’t prove their citizenship, hinges on the question at the center of the national debate over voting restrictions: Is there enough evidence of noncitizens registering to vote to justify a law that imposes a substantial hurdle to registering?

Kobach has long been one of the loudest voices arguing that widespread voter fraud is a problem, a claim that several studies and investigations have debunked. Kobach, whom President Donald Trump picked to lead a now defunct commission to investigate voter fraud, will now have to prove his claims in a court of law.

Dale Ho, the director of the voting rights project at the ACLU, which is representing the plaintiffs, said it was “not an accident” that Kobach was at the center of the lawsuit.

“This could really be in a lot of ways the case where we really put the evidence of fraud on trial in this country,” he said. “You have the nation’s chief purveyor of fraud talking about this. Well now he’s going to have to try and prove it in court, not on Fox News.”

“You have the nation’s chief purveyor of fraud talking about this. Well now he’s going to have to try and prove it in court, not on Fox News.” Dale Ho, director of the ACLU's voting rights project

Kobach has tried hard to get around the NVRA requirements for what officials can ask about when someone tries to register to vote. He unsuccessfully sought to amend the federal voter registration requirements to allow states to ask about proof of citizenship.

The morning after the 2016 election, Kobach wrote to a Trump transition official and said he was already working on an amendment to NVRA that would make it acceptable for states to ask people to prove they were citizens when they registered to vote. Later that month, Kobach met with Trump and brought a memo recommending changing NVRA to allow states to ask for proof of citizenship. Shortly after that meeting, Trump tweeted that he would have won the popular vote had it not been for illegal votes and would later go on to say that 3 to 5 million people voted illegally in the election. The White House has failed to substantiate that claim, but has publicly pointed to Kobach as someone who can.

Kobach has suggested that 127 noncitizens in Kansas registered or attempted to register to vote in the state anytime before 2013, instances which he said diluted a legitimate voter’s ballot. That 127 number represents less than 0.01 percent of the total number of voters in Kansas. But Kobach has said there could be more than 18,000 noncitizens on the rolls. He plans to offer a series of experts during the trial to support the claim. 

The ACLU says roughly one in seven voters in Kansas were blocked from voting because of the proof of citizenship law between 2013 and 2016. Because noncitizen attempts to register in the state are so rare, Ho says the Kansas law is like “taking a bazooka to a fly.”

For people who have easy access to a passport or birth certificate, Ho acknowledged it can be difficult to see how a proof of citizenship requirement is unfairly restrictive. But the fact that so many voters were blocked, Ho said, is evidence of just how burdensome the law is.

“If seven people fail to comply with this law, then you’d say, ‘Well come on guys, get your act together,’” he said. “But it’s one out of every seven registrants in the state. That tells you that it’s a problem.”

Kobach has said that one of the reasons proof of citizenship isn’t burdensome is because people have to prove they’re a citizen when they apply to get a license. But in its complaint, the ACLU said there were thousands of people in Kansas who registered when getting their license for the first time, but failed to make it onto the rolls. Kobach, the ACLU says, wasn’t making an effort to match voter registration records with DMV records, and required people to submit proof of citizenship a second time to register to vote. NVRA prohibits states from making that kind of duplicative request, according to the ACLU.

Last year, the Kansas Advisory Committee to the U.S. Commission on Civil Rights issed a deeply critical analysis of the proof of citizenship law. They noted that there was a correlation between where African-American voters lived and areas where high numbers of people who were on Kobach’s suspense list. The commission compared the fees people have to pay to get documents to a “poll tax” and recommended that the Department of Justice review whether it violated federal law, including the 1965 Voting Rights Act.

Kobach, who is running for Kansas governor, is taking the unusual step of representing himself in the case. He has already been sanctioned with a $1,000 fine in the case for misleading the court about the contents of the documents he brought to his November 2016 meeting with Trump.

Kobach, who declined to be interviewed through a spokeswoman, has staunchly defended the proof of citizenship law and has indicated in court documents that he will defend it all the way to the United States Supreme Court (though his term ends in 2019 and he is not seeking reelection).

“The ACLU has declared war on election security laws like ours in Kansas. This war is something that is outrageous,” he said in an interview with Fox News in February. “They’re making ridiculous arguments like it’s an unconstitutional burden for you to reach into your file cabinet at home and find your birth certificate.” 

This story has been updated to include a more exact figure for the percentage of noncitizens that Kobach estimated had voted in Kansas prior to 2013.

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