On Monday, a federal judge ordered Kansas Secretary of State Kris Kobach to produce two documents with proposed changes to a federal voting law, in a court order that called into question Kobach’s candor in the case.
The case is one of several challenging a 2011 Kansas law, introduced by Kobach, that requires residents to provide proof of citizenship in order to complete a voter registration.
Under the federal National Voter Registration Act, or NVRA, voter registration forms can only require “the minimum amount of information necessary” to verify citizenship. The current cases hinges on whether Kansas can prove that enough noncitizens are registering under the NVRA’s requirements that it can implement a higher standard.
The order, signed by Judge James O’Hara of the U.S. District Court for the District of Kansas, covers two documents: (1) Kobach’s draft of a possible future amendment to the NVRA and (2) a document Kobach was photographed with while entering a meeting with then President-elect Trump in November that references a possible NVRA amendment.
These documents go to the heart of the case, according to Micah Kubic, executive director of the American Civil Liberties of Kansas.
“Sec. Kobach has been asserting that the NVRA allows him to implement this unconstitutional, illegal voting rights restriction. Yet, he appears to be lobbying to have the law changed. That implies that he recognizes that his implementation scheme is not actually consistent with the current law,” Kubic said in an email.
Kobach previously argued the documents were outside the scope of discovery in the case, were not relevant, and were exempt from disclosure. O’Hara shot the scope argument down earlier this month and ordered Kobach to give him the documents so he could review them privately.
The new order also shoots down Kobach’s relevance and exemption arguments and orders him to hand the documents over to the plaintiffs. Parts not bearing directly on the NVRA may be redacted, and the documents may be shielded from public disclosure under a protective order.
In a previous filing, Kobach argued that documents showing he sought to amend the NVRA to change its requirements for assessing citizenship do not exist. O’Hara called that argument “word-play meant to present a materially inaccurate picture of the documents” and seemed to suggest the plaintiffs could seek sanctions against Kobach for being less than candid with the court.
“[W]hen any lawyer takes an unsupportable position in a simple matter suchas this, it hurts his or her credibility when the court considers arguments on much more complex and nuanced matters,” O’Hara wrote.
Kobach’s office did not immediately respond to a request for comment.