(CN) — Kansas failed Wednesday to resuscitate a proof-of-citizenship law that the 10th Circuit said “undisputedly has disenfranchised approximately 30,000 would-be Kansas voters.”
The law championed by Kris Kobach, the former Kansas secretary of state, requiring would-be residents to provide a birth certificate or some other proof of citizenship if they wanted to register to vote.
Kobach, who helped lead President Trump’s short-lived voter fraud commission, defended the law in court himself.
U.S. District Judge Julie Robinson found the law unconstitutional in June 2018, calling Kobach’s evidence of voter fraud “weak” and finding that the law violated both the Equal Protection Clause and the National Voter Registration Act. After Kobach left office in 2019, the appeal was continued by his successor, Scott Schwab.
Considered the capstone of his political career, Kobach helped form the basis of several voter ID laws in Kansas. In Wednesday’s 84-page ruling, however, the 10th Circuit concluded that proof of citizenship “unconstitutionally burdens the right to vote.”
The state argued that the “elected representatives of the people of the state of Kansas determined that requiring proof of citizenship as a condition of voter eligibility was a permissible response to the threat posed by voter fraud.”
While the acknowledging the government’s right to fight voter fraud, the appeals court found insufficient proof that such fraud is taking place.
“The secretary has failed to show that a substantial number of noncitizens have successfully registered in Kansas,” U.S. Circuit Judge Jerome Holmes wrote for a three-judge panel in Denver. “Thus, the [law’s] requirement necessarily requires more information than federal law presumes necessary for state officials.”
The court found that in 19 years only 67 noncitizens registered or tried to register in Kansas.
“Thus we are left with this incredibly slight evidence that Kansas’s interest in counting only the votes of eligible voters is under threat,” the opinion states. “Indeed, even as to those 39 noncitizens who appear on the Kansas voter rolls, the district court found that ‘administrative anomalies’ could account for the presence of many — or perhaps even most — of them there.”
The panel cited Kobach’s own argument as a reason for banning the law.
“If the secretary is correct that Kansas’ recent history is sprinkled with some hotly contested, close elections such that he reasonably could have an especially keen interest in ensuring that every proper vote counts, we are hard-pressed to see how that interest is furthered by the [law] — a law that undisputedly has disenfranchised approximately 30,000 would-be Kansas voters,” wrote Holmes, a George W. Bush appointee.
Dale Ho, director of the ACLU’s Voting Rights Project, argued the case at both the district and circuit court levels.
“This law disenfranchised tens of thousands of Kansans, denying them the most fundamental right in our democracy,” Ho said in a statement. He called on Schwab to drop any further appeals, “turn the page on Kris Kobach’s sorry legacy,” and work with the organization.
Schwab declined to comment extensively on the ruling, saying his office is “thoroughly reviewing” the court’s decision.
Kobach, who is running in the Kansas Republican primary to replace retiring U.S. Senator Pat Roberts, did not return a phone call for comment but did tweet about the ruling.
“The 10th Circuit decision striking down Kansas’s proof-of-citizenship law is the essence of judicial activism, setting aside the plain meaning of the law and replacing it with a subjective, policy-based balancing test,” he wrote, adding it “reads more like a congressional report than a judicial opinion.”
President Donald Trump has said millions of people voted illegally in 2016 and claims he received his information from Kobach. That evidence was presented at the federal trial by Kobach’s expert witness, Hans von Spakovsky, an attorney and member of the conservative Heritage Foundation.
Judge Robinson called Kobach’s evidence of voter fraud “weak” and said von Spakovsky’s work was likely based on “misleading evidence and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of stricter proof-of-citizenship laws.” Kobach was sanctioned by the judge for what she called a “well-documented history of avoiding this court’s orders.”
She condemned Kobach’s failure to disclose documents and attempt to introduce evidence she had already excluded, ordering him to take six hours of legal education beyond what is required by his law license on trial procedure.
The case drew friend-of-the-court briefs from Texas, Arkansas, Missouri, Oklahoma and West Virginia. Republican-led states have created voter ID laws under the premise that such laws combat voter fraud, though research on the subject has found no evidence to suggest that voter fraud occurs on a large enough basis to impact elections.
The decision is binding to the states under the 10th Circuit, including Colorado, New Mexico, Oklahoma, Utah and Wyoming.
U.S. Circuit Judges Mary Beck Briscoe, a Bill Clinton appointee, and Monroe McKay, a Jimmy Carter appointee, joined Holmes on the panel. McKay died in March, but the two remaining judges were allowed to act as a quorum in resolving the appeal since they were in agreement.