Kansas Secretary of State Kris Kobach could use a little credibility at the moment. President Trump’s so-called election-integrity commission, of which he is the de facto chief, has come under suspicion for both its methods and its purpose. But citizens seeking assurance about Kobach’s motives won’t find that from the federal courts.
In a ruling yesterday, flagged by the indefatigable Rick Hasen, Judge Julie Robinson of the U.S. District Court of Kansas rejected Kobach’s request that she overturn a $1,000 fine levied on him by a U.S. magistrate judge. That wasn’t the most significant part of the ruling. Over 13 pages, Robinson carefully lays out ways in which Kobach appeared to be playing fast and loose with the facts in the lower court. And in affirming Magistrate Judge James O’Hara’s fine, she became the second federal judge to deem Kobach at the very least misleading in his court appearances:
The undersigned echoes Judge O’Hara’s warning in the Order compelling production that “when any lawyer takes an unsupportable position in a simple matter such as this, it hurts his or her credibility when the court considers arguments on much more complex and nuanced matters.” … These are not the only two statements made or positions taken by Secretary Kobach that have called his credibility into question.
Robinson, a George W. Bush appointee, continued that “these examples… demonstrate a pattern, which gives further credence to Judge O’Hara’s conclusion that a sanctions award is necessary to deter defense counsel in this case from misleading the Court about the facts and record in the future.”
In the dry language of federal courts—a federal judge is unlikely to call a statewide official a liar—that’s a stinging judgment on Kobach’s honesty.
The case in question involves, of course, voting rights and accusations of fraud. The ACLU brought a lawsuit in 2016 on behalf of Kansans whose voter-registration applications had been canceled based on a regulation issued by Kobach. The secretary has established himself as a crusader for tougher voting laws, alleging massive (but entirely undemonstrated) voting fraud. He has collected unprecedented power to prosecute fraud cases in Kansas, and has consulted other states nationally on ways to make it harder to vote. The ACLU alleged that Kobach’s rule violated the National Voter Registration Act of 1993, better known as “Motor Voter,” which requires that states give citizens the opportunity to register to vote when they get a driver’s license, because the rule required they return with additional documentation.
The two sides of the suit have been engaged in a lengthy court battle over what documents Kobach should have to provide to the plaintiffs. In particular, the plaintiffs asked to see a draft of an amendment to NRVA and a document that Kobach created about NRVA to show to Donald Trump during a pre-inauguration meeting. (That document’s existence was revealed when photographs taken by journalists showed the document as Trump greeted Kobach.)
Kobach refused to turn them over, saying they were not relevant to the case. O’Hara ordered that Kobach allow him to review them to determine whether they were relevant, then determined they were. He also wrote that Kobach’s explanations for trying to withhold them “most charitably, can be construed as word-play meant to present a materially inaccurate picture of the documents.”
The letter, when released, suggested that Kobach hoped to use Trump’s commission as an instrument to alter Motor Voter and make registration harder, much as he had tried to do by fiat in Kansas.
The plaintiffs asked O’Hara to punish Kobach, remove a “confidential” designation from some documents, and allow them to depose him. O’Hara granted the deposition, declined to recategorize the documents, and fined Kobach the $1,000. Robinson noted:
Judge O’Hara would not go so far as to say Defendant “flat-out lied in representing the content of the disputed documents,” but did find that his justifications for these statements were based on “thinly parsing the wording plaintiffs allegedly used.”
Kobach appealed the punishment, saying his filings were not intentionally misleading but instead showed a “lack of clarity” borne out of haste, but Robinson didn’t buy that, and she upheld the fine. She also upheld the order forcing Kobach to testify. (Kobach’s office has not responded to a request for comment about the ruling.)
Kobach is a busy man: In addition to his duties as secretary of state, including this case, he’s also busy with the Trump election panel and his own run for governor of Kansas. The deposition is no doubt a hassle. But Robinson’s declaration that Kobach demonstrates a pattern of misleading federal courts is more troublesome.
Since Trump’s election commission requested reams of data from state governments, thousands of voters, most of them in Colorado, have canceled their voter registration over concerns about privacy. Amber McReynolds, the director of voting for the city of Denver, told me that was because of uncertainty about the Kobach group’s motives.
“There’s been confusion because the commission hasn’t really outlined its plans, its mission, its goals,” McReynolds said. “Until they clearly define what their mission is, people will be concerned.”
Robinson’s ruling doesn’t encourage any of those voters to take the panel and its leader at face value.
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