KANSAS CITY, Kan. (CN) – The federal trial to determine the legality of a voter ID law in Kansas wrapped up Monday afternoon as another expert whose work was used by Kansas Secretary of State Kris Kobach to assert widespread fraudulent voting had his credibility called into question.
The bench trial will determine the constitutionality of Kansas state law requiring proof of citizenship documents to register to vote. The plaintiffs in Fish v. Kobach, represented by the American Civil Liberties Union, claims that the law infringes their right to vote.
Kobach, meanwhile, claims that the law is meant to prevent noncitizens from fraudulently voting. He must prove to the court that noncitizen voting is widespread and that the voter ID law is the only way to ensure that fraudulent voting doesn’t occur.
Secretary Kobach, representing himself, has repeatedly tried to enter evidence into the record without notification, causing U.S. District Judge Julie Robinson to reprimand him and his legal team throughout the trial.
Kobach’s team found themselves in the weeds again regarding the status of a witness. Sue Becker, Kobach lawyer, introduced Pat McFerron, a pollster hired by Kobach, as an expert witness.
Judge Robinson explained to Becker that expert witnesses had to be disclosed to the court in advance and that McFerron was entered as a fact witness. Robinson allowed the testimony to take place and said she would decide later if he would be considered as an expert.
McFerron was scrutinized by the ACLU regarding a survey Kobach used to show public support for the voter ID law. According to the poll of 500 Kansans, 77 percent said they were in favor of the law.
ACLU attorney Neil Steiner brought up the possibility of bias in the wording of the survey question, which said: “In 2011, because of evidence that aliens were registering and voting in Kansas elections, the Kansas Legislature passed a law requiring that people who register to vote for the first time must prove that they are United States citizens before they can become registered. Do you support or oppose this?”
McFerron agreed the question could be considered biased.
Steiner also pointed out the poll included people who were already registered to vote, so the law did not apply to them. In McFerron’s survey, 83 percent of the 500 people surveyed were already registered to vote.
“You can’t tell this court anything about the impact of the voter registration law on people who are not already registered to vote in Kansas,” Steiner said.
The ACLU also called into question McFerron’s qualifications, noting that he failed to complete a graduate degree.
McFerron himself testified that he did not know about academic polling methods that include statistical weighting and “social desirability,” where respondents answer questions in a way that make them look good to the pollster rather than a truthful answer.
Mark Johnson, one of the plaintiffs’ attorneys, suggested the survey was done for political reasons. He pointed to McFerron’s work for Sam Brownback’s 2014 gubernatorial campaign, for which he was paid $98,000.
In the ACLU’s closing argument, lead attorney Dale Ho said the law only created a burden upon Kansans and their ability to register. He cited the example of the Kansas League of Women Voters and their declining registration drives after the law took effect.
“It’s about the voters who the [League] would normally be reaching through their voter registration drives,” Ho said.
Ho added that Kobach’s survey evidence was filled with non-standard methodology, conducted by pollsters with no advanced degrees and filled with bias. Although Kansas has a hearing process in which people who lack proof-of-citizenship documents can speak to state officials, Ho said that information was never provided to the plaintiffs.
The attorney also pointed to a survey conducted by Hans von Spakovsky, an attorney with conservative think tank The Heritage Foundation, as intentionally misleading. Von Spakovsky, who claims there could be thousands of noncitizens registered to vote in Kansas, testified that he couldn’t explain his methodology and that his work has never been peer reviewed.
Ho said the voter ID law is based on a story that hordes of noncitizens are subverting elections.
“These stories about noncitizens stealing our elections are not real,” Ho said. “The damage to democracy, when so many of our fellow citizens are silenced, is real.”
In his closing arguments, Kobach said the evidence shows the law doesn’t create a burden. He said no one has been prevented from voting, they just haven’t gone through the state’s process.
“The ACLU keeps saying people are prevented from voting,” Kobach said. “No, they’re not prevented.”
Kobach pointed to von Spakovsky’s work and others as evidence that substantial noncitizen voting is taking place in Kansas in the number of thousands.
“We clearly have enough to say it’s substantial,” Kobach said. “These estimates indicate the system is failing.”
It is unknown when Judge Robinson will decide the case. Kobach and the ACLU are due back in court Tuesday, though, for a contempt hearing against Kobach. The ACLU claims Kobach’s office refused to comply with an earlier injunction from Robinson that requires the state to send voters a certificate of registration with polling location information.
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