April 20, 2018 – In a scathing decision issued on Wednesday evening, a federal judge held Kansas Secretary of State Kris Kobach in contempt for repeatedly and willfully disobeying court orders that he comply with federal voting rights law.
The contempt ruling by Chief Judge Julie Robinson, who was appointed by George W. Bush, follows years of attempts by Kobach to evade, undermine, or ignore the court’s directive that he register and notify all eligible voters in accordance with the National Voter Registration Act. The judge lambasted Kobach for his “history of noncompliance and disrespect for the Court’s decisions in this case.”
Kobach’s Long History of Defying the Law
Before Kris Kobach took office as secretary of state, Kansans could register to vote the same way that people do in virtually every other state in the country: by submitting a sworn oath of citizenship under penalty of perjury. In 2013, Kobach implemented a pet law he had drafted and pushed through the Kansas Legislature, requiring people to track down a citizenship document — such as a passport or birth certificate — before they could be registered to vote. The burden of Kobach’s law on voters was devastating.
Large numbers of citizens — disproportionately minorities — don’t have a passport or birth certificate and don’t have the money to obtain replacement documents. By December 2015, more than 30,000 Kansans had been disenfranchised, approximately 12 percent of all registration applications since the requirement went into effect. The NVRA, popularly known as the Motor-Voter law, prohibits unduly harsh registration rules and requires that states make voter registration easy and straightforward.
In May 2016, Judge Robinson issued a preliminary ruling blocking Kobach’s law as illegal under the NVRA. The ruling was grounded in the clear text of the NVRA and was consistent with a 2013 Supreme Court decision written by Justice Antonin Scalia that had already rejected Kobach’s legal theory for his documentation requirement.
Kobach’s Second Chance
After issuing her decision, Judge Robinson took pains to give Kobach an opportunity to file an emergency appeal requesting a stay of her preliminary injunction so that a higher court could determine if her ruling was in error. Kobach’s stay request was swiftly rejected by the 10th Circuit Court of Appeals. Judge Robinson ordered Kobach to register the voters covered by her injunction and notify them that they could vote. She wrote: “the Court is confident that the Secretary will be able to fashion a conspicuous, easily understood notice that will apprise voters of the status of their registrations and their right to vote in federal elections in 2016.”
Any trust in Kobach was plainly misplaced.
As the 2016 election approached, it became clear that Kobach had no intention of actually registering voters as the court had directed. Kobach refused to add voters to the state’s registration list. Instead he sent deceptive and confusing notices telling individuals that they could not become registered until they had produced citizenship papers. Kobach made statements in separate court proceedings and in the media that he needed to keep these voters unregistered so that it would be easier for him to eliminate them from the voter rolls if he later won on appeal.
It was only after the court ordered Kobach to appear at a contempt hearing requested by the ACLU that Kobach agreed to comply one day before the hearing.
Kobach’s Third Chance
In extending him yet another chance to follow the law, Judge Robinson was clear that Kobach must treat all voters covered by her injunction as any other registered voter. This meant providing them with the standard postcard notification that all Kansas voters receive, confirming they are registered and advising them of their polling location.
Kobach expressly promised Judge Robinson on the record that he would ensure that any voter who was previously suspended would get this postcard notification. Of course, that didn’t happen. The ACLU learned later in 2017 that the postcard notifications had never been sent. When the ACLU highlighted this clear problem, Kobach’s office reneged, now claiming that they never had any obligation to send the postcard notices that they had already promised to send.
Kobach’s office also stated that they would not update the election manual on the secretary of state’s website to reflect Judge Robinson’s decision, even though the manual is crucial to ensure that that county election officials and the public understand the correct eligibility requirements for voter registration. Kobach’s office refused to change instructions to county election officials unless the Supreme Court weighed in to affirm Judge Robinson’s order — a process that would typically take years.
This is contempt of court.
When questioned at a final contempt hearing in March, Kobach resorted to blaming anyone else for violations of the order, including his own assistants and paralegals. As the judge put it, “Defendant deflected blame for his failure to comply onto county officials, and onto his own staff, some of whom are not licensed attorneys.”
Judge Robinson told Kobach “You are under an ethical obligation to tell me the truth . . . that’s why lawyers are licensed.” She said, “I honored and trusted what you told me, Mr. Kobach.”
But Kobach simply cannot be trusted. He has already said that he intends to appeal Judge Robinson’s ruling. It is clear that the secretary of state believes he need only answer to himself and not the law. As a result of Kobach’s willful defiance of the law, many Kansans who should have been seamlessly registered to vote have been trapped in limbo for no reason at all.
The contempt hearing is just one part of the larger case that the ACLU is fighting against Kobach’s documentary proof-of-citizenship law which blocked more than 30,000 people from registering to vote. As he continues to defend both himself and this law in court, we should all remember his record.
Orion Danjuma, Staff Attorney, ACLU Racial Justice Program