Kansas Secretary of State Kris Kobach (R) is attempting to defend his proof-of-citizenship law in federal court, and it’s not going well. He and his legal team have repeatedly violated basic rules of evidence, causing the judge to raise her voice and reprimand them on multiple occasions. Now, in the past week, two of his prominent expert witnesses admitted there is no evidence to back up Kobach’s notorious claim that voter fraud swung the 2016 popular vote.
In November 2016, shortly after winning the electoral college but losing the popular vote, President Donald Trump claimed that three to five million fraudulent votes swung the election. Kobach quickly became his spokesperson, claiming repeatedly that academic studies backed up Trump’s claim.
“I think the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin between him and Hillary Clinton at this point,” he told the Kansas City Star in November 2016.
In order to uphold his proof-of-citizenship law, Kobach has to convince the court that a substantial number of noncitizens are voting in, and potentially swinging, U.S. elections.
To help make that claim, he called to testify as experts two allies whom he has relied on in the past to corroborate his claims about voter fraud. Hans von Spakovsky, a fellow at the conservative Heritage Foundation and former member of the Federal Election Commission, also sat on Kobach and Trump’s now-disbanded voter fraud commission. Jesse Richman, a professor of political science, has authored now-discredited reports about the scale of noncitizen voting in the United States and in Kansas in particular.
In cross-examination by the ACLU, the group that sued Kobach over his law, neither man would name an instance in which noncitizen voting swung an election.
Approached by ThinkProgress for comment, both witnesses declined to discuss the litigation. A representative for Kobach did not respond to a request for comment.
The statistical researcher: Jesse Richman
Richman, a political science professor at Old Dominion University, is one of Kobach’s star witnesses — and the foundation on which much of his case rests. Richman is famous for a 2014 paper in the journal Electoral Studies which claimed that between 38,000 and 2.8 million non-citizens voted in the 2008 general election.
That paper made Richman a darling among conservatives, but other political scientists have roundly rejected that paper’s conclusions. A statistical analysis Richman wrote for the Kansas trial is also riddled with problems like tiny sample sizes and response errors.
But during a sworn deposition Richman sat for in the Kansas case, he repeatedly minimized the impact of noncitizen voting on elections.
“The level of noncitizens participation is not high,” he said at one point. “At the same time, it’s large enough, as we also argue in this paper, to tip sufficiently close elections.”
Later in the same deposition, Richman even appeared to back off that claim, saying that “almost all elections in the U.S. are not determined by noncitizen participation, with occasional and very rare potential exceptions.”
Richman also said over and over that noncitizens do vote illegally in the U.S. But he admitted that at least some of those illegal votes could be due to a lack of awareness on the part of some noncitizens who believe their votes are legal — and that public-education campaigns, rather than proof-of-citizenship laws, could help.
“I suspect that the law in Kansas and the controversy surrounding it has played an educated [sic] role in terms of increasing awareness… that noncitizens are not supposed to register and vote in U.S. elections,” Kobach said when asked about alternatives to proof-of-citizenship laws.
At trial, Richman again refused to claim that noncitizen voting has swung elections, including the 2016 race.
Then Ho showed a video of Kobach telling the @KCStar that the numbers used in Richman’s analysis showed illegal votes could account for the “entire margin” of the presidential vote. Ho asked Richman if he agreed w this interpretation -after some waffling, he said no #ACLUvKobach
— Jessica Huseman (@JessicaHuseman) March 13, 2018
The voting commission ally: Hans von Spakovsky
On the fourth day of the federal trial, von Spakovsky testified that documentary proof of citizenship laws like Kansas’ are necessary to prevent voter fraud — an issue he sees as a major concern. According to the Kansas City Star, he testified that other methods of identifying noncitizens on the voter rolls are insufficient and said the threat of prosecution doesn’t deter noncitizens from voting “because we basically have an honor system” in U.S. elections.
After at least four voters testified in court that they were disenfranchised because of Kansas’ law, von Spakovsky claimed that all eligible voters can meet the burden of Kobach’s law.
— Sherman Smith (@sherman_news) March 9, 2018
Von Spakovsky also could not name a single election where voter fraud swung the results — including the 2016 presidential race. He has previously discussed several local races he believes could have been swung by voter fraud, including in a presentation to Trump’s voter fraud commission. But on the stand and under oath at trial, he could not come up with any examples.
— Bryan Lowry (@BryanLowry3) March 9, 2018
Under questioning by the ACLU’s Dale Ho, von Spakovsky admitted that his work on voter fraud has not been subjected to peer review and that studies of noncitizen voting in Kansas are based on small sample sizes.