Judge Refuses To Reconsider Fine Of Kansas Secretary Of State Kobach

Jul 6, 2017

A federal magistrate judge on Wednesday refused to reconsider his order fining Kansas Secretary of State Kris Kobach $1,000 for misleading the court.

U.S. Magistrate Judge James P. O’Hara said the reconsideration request raised arguments that Kobach should have made earlier.

O’Hara last month fined Kobach after finding that he had deceived the court about the nature of documents he was photographed taking into a November meeting with then President-elect Donald Trump. 

O’Hara imposed the sanction in a case challenging a Kansas law requiring voters to provide proof of citizenship such as a birth certificate or passport when they register to vote. Kobach is a defendant in the case.

The lawsuit alleges that the law violates the National Voter Registration Act, popularly known as the motor voter law. The plaintiffs, including the League of Women Voters of Kansas, had asked that Kobach turn over the documents shown in the photograph, arguing they bore on the question of whether – as Kobach maintains – voter fraud is rampant.

The documents appeared to be a proposal by Kobach to amend the motor voter law. Kobach, however, told the court that the documents were unrelated to that.   

O’Hara found that Kobach “made patently misleading representations to the court about the documents, which at the time had not been produced to either the court or plaintiffs, such that the court was required to take defendant at his word.”

Kobach raised two new arguments in asking O’Hara to reconsider his $1,000 fine.

First, he argued that if he must sit for a deposition in the case, as he has been ordered to do, he may be precluded from acting as counsel in the case because of the potential conflict of interest that entails.

Second, he claimed that he had no intent to deceive the court. Rather, he argued, his misrepresentations were due to “last-minute editing to meet page limitations, which led to the deletion of language that more fully explained the point Defendant was making.”

O’Hara dismissed both arguments, saying Kobach should have raised them in prior briefings.

“In any event,” O’Hara wrote of the second argument, “this new excuse lacks credibility based on its late assertion (which appears to be an attempt at a second bite at the apple) and lack of supporting documentation.”

Mark Johnson, a lawyer representing plaintiffs in a related case, said O’Hara’s denial of Kobach’s motion for reconsideration was “perfectly within the bounds of the law. I don’t see anything there that’s grounds for reconsideration.”

Kobach could not be reached for comment.

Wednesday night, Kobach filed a motion asking the presiding judge in the case, Julie Robinson, to overrule O’Hara. The motion, in part, stated that O’Hara “clearly erred in ordering sanctions against Defendant for lack of clarity caused by an editing mistake and refusing to consider Defendant’s explanation.”

O’Hara issued his ruling as Kobach, a Republican, defended his work as co-chair of a national voter fraud commission established by Trump. Kobach’s request of all 50 states for voter roll data, including the last four digits of registered voters’ Social Security numbers, has encountered resistance from some state officials, who have balked at providing all or some of the information, citing voter privacy considerations. 

Kobach has been a vocal supporter of stricter voting laws and has echoed Trump’s unsubstantiated claim that millions of people voted illegally in the presidential election.

Kobach’s voter roll data request has triggered lawsuits by the Electronic Privacy Information Center and by the Lawyers’ Committee for Civil Rights Under Law.

Correction: An earlier version of this story said that Mark Johnson, an attorney, represents plaintiffs in the case in which Kobach was fined. He represents plaintiffs in a related case. 

Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.