A Kansas federal judge had sharp words for Republican Secretary of State Kris Kobach during a contempt hearing Tuesday, accusing him of misleading the court and failing to inform voters whose registrations were previously suspended that they are eligible to vote.
In May 2016, Judge Julie Robinson issued a preliminary injunction ordering Kobach “to register for federal elections all otherwise eligible motor voter registration applicants,” whether or not they have shown a documentary proof of citizenship. The American Civil Liberties Union, which filed the lawsuit challenging Kobach’s proof of citizenship law, argued that Kobach was failing to add voters to the rolls, making eligible voters cast provisional ballots, and failing to send voters affected by the preliminary injunction a postcard that would notify them of their registration status.
After seven days of trial, the court held a hearing on contempt Tuesday in which Judge Robinson repeatedly chastised Kobach when he argued that he did not violate the order.
“You have a duty to tell them that and to assure me that they complied,” the judge told Kobach about his obligation to tell counties to register all eligible voters. “It’s your duty to make sure they do what they are supposed to do and abide by the law.”
— Bryan Lowry (@BryanLowry3) March 20, 2018
In a telephone conference in October 2016, roughly five months after the injunction, Kobach made a verbal promise that counties would send postcards to voters who had previously been on the suspense list for not showing proof of citizenship, but became registered because of the court’s order, informing them of their registration status.
In court Tuesday, Kobach and his attorneys claimed the judge never ordered them to send those postcards to voters, but the judge didn’t buy that argument.
“Why would I order something you told me you’d take care of?” the judge said, according to ProPublica’s Jessica Huseman, who was in the courtroom. “You are under ethical obligation to tell me the truth… that’s why lawyers are licensed.”
At another point, Kobach grew exasperated, telling Judge Robinson: “I certainly would have no interest in failing to comply with any court’s order.” Last June, the court upheld a $1,000 fine against Kobach for intentionally misleading the court about a document he was photographed carrying into a November 2016 meeting with Trump.
In its motion for contempt, the ACLU had previously argued that Kobach’s violation of the preliminary injunction was already affecting elections.
“These are not merely technical violations of the order; they have real consequences for all affected Kansans,” the ACLU wrote. “The refusal to register the plaintiffs deprives them of the most basic protections afforded to registered voters… Because of the Secretary’s defiance of the Order, covered voters have received no assurance that they may participate in the upcoming election or that their votes will be counted.”
The ACLU claimed that Kobach’s actions could have a “chilling effect,” suppressing turnout in upcoming elections.
“It’s an election year this year, and there’s no more time for games,” Dale Ho, lead attorney for the ACLU, told the judge Tuesday.
Kobach helped draft and enact the documentary proof of citizenship law, which took effect in January 2013, requiring all Kansas residents to show a document like a birth certificate or passport when they registered to vote. The law was in place for more than three years until the court issued the preliminary injunction order before the 2016 presidential election.
The contempt hearing came on the eighth day of a trial that was originally supposed to last just four days, but ended up stretching for far longer because Kobach’s legal team struggled to cross-examine witnesses and follow basic rules of evidence. At the start of Tuesday’s hearing, Ho apologized to the judge for having to address the motion for contempt.
ACLU (Dale Ho): Apologizes to judge to spend time on this. Says Kobach could have very easily complied with judge's preliminary injunction, but he failed to update the online elections manual & to send postcards to voters with info including their polling place. #ACLUvKobach
— Celia Llopis-Jepsen (@Celia_LJ) March 20, 2018
Ho told the judge that Kobach is refusing to update the online elections manual until the U.S. Supreme Court issues a final judgement on this case, which could take years. “Incorrect information is continually distributed to the general public,” he said.
Sue Becker, an attorney for Kobach, claimed that the secretary of state’s office put the required information on its website and emailed counties with the notice to begin registering voters without documentary proof of citizenship. If individual counties misunderstood the directive, Becker argued, it was not Kobach’s fault.
Judge Robinson said she was not going to take Becker’s word that her office sent notices to the counties. “You’re going to present evidence to that effect or am I supposed to accept your statement?” she said. “I want evidence… In light of everything that’s happened.”
“You all have engaged in gamesmanship with this court,” she said.
Later in the hearing, Kansas Director of Elections Bryan Caskey testified that the state was equipped to register all eligible voters before the 2018 election. But during cross-examination, Caskey admitted to failures by the state in the past.
— Bryan Lowry (@BryanLowry3) March 20, 2018
At the end of the hearing Tuesday, Judge Robinson said she will issue a written opinion in the case and on the motion for contempt — the second time the ACLU has sought to hold Kobach in contempt in this trial. Kobach has already indicated his intentions to appeal an unfavorable ruling to the U.S. Supreme Court.