KANSAS CITY, KANSAS — At the start of trial Tuesday in litigation over the Kansas law requiring documentary proof of citizenship to vote, an attorney for the American Civil Liberties Union began the day by reminding the judge that “this case is about the most fundamental right in our democracy.”
Dale Ho, an attorney for the ACLU, explained that tens of thousands of Kansas voters have been disenfranchised as a result of Secretary of State Kris Kobach’s (R) law, which was implemented in 2013 in an attempt to combat voter fraud.
“Enforcing this law is like taking a bazooka to a fly,” Ho said.
Up until now, courts have agreed: The law was in effect for more than three years before it was temporarily blocked by a judge in 2016, a ruling the ACLU hopes to make permanent.
During the first day of trial, the federal courthouse in windy, snowy Kansas City was packed with dozens of voters and concerned citizens filling the benches and spilling into the jury box. The trial took place, appropriately, on the citizenship floor of the large, concrete government building. Colorful signs about Kansas’ history of welcoming immigrants line the walls.
Throughout the day, the ACLU called as witnesses three Kansas citizens who were all barred from voting because of the law. Tad Stricker and TJ Boynton — white men in their late 30s living in Wichita — testified that they have access to their birth certificates but were never asked to show the document when they registered to vote at the Department of Motor Vehicles in 2014 because of a clerk’s oversight or error.
Stricker testified that he was frustrated and upset when he was forced to cast a provisional ballot that would not count. “I don’t think the average Kansas citizen should have to sue the secretary of state to get registered to vote,” he said. “I want to make it easier for people to vote and I think that’s what we should be doing.”
The third voter witness, 59-year-old Donna Bucci, was born in Maryland and does not have her birth certificate. Bucci testified that she works in the kitchen at the Kansas Department of Corrections helping inmates prepare meals, and she does not have the time during the workday to visit or call her elections office or make calls to Maryland to get another copy of her birth certificate. When Bucci attempted to vote in 2014 after registering at the DMV, she was told she was not on the rolls.
“I was pretty mad,” Bucci said. “There’s just a lot of things I see going on in Kansas I’d like to be involved with.”
To win — and restore his documentary proof of citizenship law — Kobach will have to prove both that there are a substantial number of non-citizens on the voter rolls in Kansas and that nothing less than the law would address the issue. The ACLU, which is arguing that both prongs have not been met, claimed that the number of non-citizen voters is not substantial — Kobach has only convicted one non-citizen of voter fraud out of millions of voters. They also argued that there are many methods of weeding out non-citizens on the rolls that don’t involve disenfranchising tens of thousands of eligible voters.
Kobach is representing himself in court. Throughout the day, Kobach and his co-counsel repeatedly fumbled — sometimes literally. The team dropped papers, did not have enough copies of exhibits, and at one point, accidentally handed the ACLU a copy of an exhibit with their notes on it. When Sue Becker, an attorney with Kobach’s office, cross-examined Bucci, the attorney seemed not to understand basic legal rules. At one point, the judge prohibited evidence that Kobach’s team failed to send to the ACLU with the required 24 hour notice — the email with the document was time stamped 10:43 pm the night before trial began. The judge also had to explain to Becker how to lay the foundation before presenting evidence.
“Evidence 101,” she told Becker.
The silence in the courtroom grew to murmurs as Kobach’s team shuffled through papers.
“This is a great snapshot of exactly how Kansas politics works,” Jenni Baker, a voter observing the trial, whispered to ThinkProgress.
During an afternoon break, Rosanne Rosen and Susan Dickson, voters from Johnson County, Kansas, claimed that they were more impressed with the conduct of the ACLU than with Kobach. While they spoke, Kobach walked by wearing a noticeably rumpled suit jacket.
“I don’t think the average Kansas citizen should have to sue the secretary of state to get registered to vote.”
“He’s a mess,” Dickson said. “I mean, he’s brilliant but he does not handle himself well. The ACLU is so much more prepared.”
Both women said they have been involved with voter registration drives in Kansas and have opposed the proof of citizenship law because of its effects on those efforts. They cited the potential burden on individual voters.
“These are people who are not able to vote and they’re citizens,” Dickson said. “If there’s one person who’s not able to vote because of the law, the law is wrong.”
Most of Tuesday afternoon was dedicated to one of the ACLU’s expert witnesses, Michael McDonald. McDonald is a professor at the University of Florida who has authored a number of peer-reviewed articles on voter participation and turnout. In a report for this case, McDonald determined that roughly 30,000 people have had their registrations suspended as a result of the documentary proof of citizenship law, and that a disproportionate number of them are young voters or voters unaffiliated with a political party.
Kobach tried to argue that voter turnout in Kansas went up from 2010 to 2014, so the law could not have suppressed voters, but McDonald claimed that only some elections are competitive and there are many factors to consider when studying turnout.
During his cross-examination, Kobach presented McDonald with a series of tweets the expert had written about Kobach, trying to prove that he has a person bias against him. In one, McDonald quoted Vice President Mike Pence and called Kobach a “shit sandwich.”
McDonald claimed that he harbors no bias. “They’re tough, but they’re tweets,” he said.
At the end of the day, Judge Robinson denied Kobach’s attempt to block evidence related to his attempts to amend the National Voter Registration Act. The court previously ruled that a document he’d been photographed holding after a meeting with then-President elect Trump in 2016 had to be turned over to the ACLU. Judge Robinson said both the exhibits and Kobach’s deposition about them could be admitted as evidence.
Kobach will present his side later in the week, but his 30-minute opening statement — double the allocated time — offered a preview of the arguments he intends to make. The Republican elections official will claim that non-citizen voting is a substantial problem and that Kansas’ old system, one in which individuals registering to vote had to attest by signature that they are U.S. citizens, is inadequate.
Rosen pointed out the hypocrisy in Kobach’s argument.
“They raise their right hand to swear to tell the truth, the whole truth, and nothing but the truth,” Rosen told ThinkProgress, referring to the oath witnesses take in the courtroom. “That’s good enough for every court in the land, but to say under oath that you’re a citizen isn’t good enough?”