Judge OKs Sanction of Kobach in Voting-Rights Case

KANSAS CITY, Kan. (CN) – A federal judge on Tuesday denied Kansas Secretary of State Kris Kobach’s request to reconsider a magistrate judge’s sanctions, finding Kobach has shown a pattern of misleading the court in a voting-rights case.

In a ruling issued Tuesday, U.S. District Judge Julie Robinson refused Kobach’s request to reconsider a $1,000 fine issued by U.S. Magistrate Judge James O’Hara, as well as O’Hara’s order that Kobach submit to a deposition in an ongoing case between the secretary of state and the American Civil Liberties Union over Kansas’ requirement of proof of citizenship for registered voters.

O’Hara sanctioned Kobach for misleading the court regarding the nature of voting-policy documents he was photographed with in a November meeting with President Donald Trump. The top sheet of the documents visibly showed suggested policy changes to the National Voter Registration Act which had been requested by the ACLU. After a review, O’Hara ordered Kobach to hand over the documents after finding them relevant to the case.

Kobach fought the order, arguing they were protected by Trump’s executive privilege and attorney-client privilege since an attorney in Kobach’s office had seen them. When he did hand them over, he marked the documents as confidential, a classification the ACLU is currently trying to overturn in an effort to make them public.

In her ruling, Robinson used three examples of Kobach’s previous behavior to chide him for habitually making misleading statements.

“While these examples do not form the basis for any sanctions award imposed by Judge O’Hara, they do 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,” Robinson wrote.

In his motion for reconsideration of the fine, Kobach said he didn’t mean to mislead the court over the nature of the documents, and that the misunderstanding was caused by a last-minute filing and lack of editing. That excuse didn’t score with Robinson, who noted Kobach had never raised that argument before.

“A motion for reconsideration is not an opportunity for a party to raise arguments that could have been raised in the first instances, when those facts were previously available,” Robinson wrote. “The new facts presented on reconsideration were clearly available to defendant at the time he responded to the motion for sanctions; therefore, Judge O’Hara did not err in concluding that there was no basis for reconsideration.”

Robinson also said Kobach, known as the architect of many state voter ID laws and frequent guest on political talk shows, must be deposed by the ACLU as ordered by O’Hara. The lawmaker has made it clear he is eager to represent himself in the case, a fact that Robinson noted in her ruling as being irrelevant given the circumstances.

“But as defendant states in the reply, he has chosen to represent himself in this and other cases challenging the [proof of citizenship] law, presumably due to his intimate familiarity with the law and issues involved in these cases,” Robinson wrote. “Nonetheless, that is his choice, and Judge O’Hara’s conclusion that this choice does not immunize him from deposition on issues that affect his role as a party and not as an attorney is not contrary to Thiessen v. General Electric Capital Corp. Moreover, the narrow deposition topic at issue on this motion involves documents that were created and disseminated by Mr. Kobach. No other witness could answer questions about these topics.”

Calls to Kobach’s office and the ACLU for comment were made after business hours and not returned by press time.

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