Judge Orders Kobach To Turn Over Documents Flashed During Visit With Trump

Apr 17, 2017

A federal judge has ordered Kansas Secretary of State Kris Kobach to produce two documents that he flashed during a visit with then President-elect Donald Trump in November. The order comes in a case challenging a state law requiring documentary proof of citizenship for voter registration.

Kobach had argued the documents were not relevant to the case, but U.S. Magistrate Judge James O’Hara disagreed and on Monday directed him to hand them over to the plaintiffs.

FILE: Kansas Secretary of State Kris Kobach testifies at a state legislative hearing.
Credit Stephen Koranda / Kansas Public Radio

One document is Kobach’s draft for an amendment to the federal motor voter law, which, as it stands, makes it easy for voters to register when they get a driver’s license by simply swearing they are citizens.

The other document shows Kobach’s ideas for a homeland security agenda with a reference to the possible amendment. Kobach was famously photographed with that agenda under his arm at a meeting with Trump at the president’s golf club in New Jersey during the presidential transition.

The plaintiffs in the proof-of-citizenship case contend that the motor voter law, formally known as the National Voter Registration Act, preempts the Kansas law requiring voters to provide a document such as a passport or birth certificate in order to register.

Federal law requires “only the minimum amount of information” necessary to assess a person’s eligibility to vote.

Last May, a federal judge in the case issued a preliminary injunction temporarily barring enforcement of the Kansas proof of citizenship requirement pending a trial on the merits. The 10th U.S. Circuit Court of Appeals later upheld that ruling.

The appeals court said the state could rebut the minimum-information standard by showing that it had enabled a substantial number of non-citizens to register.

In his ruling Monday, O’Hara, a magistrate judge in the U.S. District Court of Kansas, said Kobach’s proposed amendment to the motor voter law was relevant because it would bear on the question of whether he could demonstrate that a substantial number of non-citizens had in fact registered to vote in Kansas.

While O’Hara found that neither of the documents conclusively proves Kobach sought to amend the motor voter law to avoid having to make that showing, he said they could lead to other relevant information bearing on the question.

O’Hara also rejected Kobach’s argument that the documents were protected by either attorney-client privilege or executive privilege. He did, however, allow Kobach to redact portions of the documents not relevant or responsive to the plaintiffs’ request.

Last week, Kobach secured his first conviction of a voter who had registered as a non-citizen. Victor David Garcia Bebek, a native of Peru and now a naturalized U.S. citizen, pleaded guilty to three misdemeanor charges of voting illegally.

Dan Margolies is a health editor and reporter for KCUR, a partner in the Kansas News Service. You can reach him on Twitter @DanMargolies.