Unsealed Deposition Shows Kobach Suspected Proof Of Citizenship Rule Might Not Be Legal

Oct 26, 2017

Newly unsealed testimony given by Kansas Secretary of State Kris Kobach suggests he knew that the federal motor voter law might have to be amended for states to require proof of citizenship for voter registration.

In a sworn deposition in a lawsuit challenging Kansas’ proof-of-citizenship requirement, Kobach acknowledged drafting proposed amendments to the National Voter Registration Act, the formal name of the motor voter law, after courts blocked the requirement for Kansas voters registering at DMV offices.

Read Kansas Secretary of State Kris Kobach’s deposition from Aug. 3, 2017

Kobach has resisted handing over documents that he brought to then president-elect Donald Trump, including the draft language, and fought to keep them under seal. But the ACLU, which filed the lawsuit, successfully argued that the changes Kobach proposed showed he didn’t think the Kansas requirement was in line with federal law.

A redacted document unsealed earlier in October shows how Kansas Secretary of State Kris Kobach proposes amending the federal motor voter law to allow states like Kansas to require proof of citizenship for voter registration.

The state’s Secure and Fair Elections Act, pushed by Kobach, requires new Kansas voters to provide proof of citizenship such as a birth certificate or passport to complete their state voter registration. The ACLU alleges the law violates the motor voter law, which only requires an attestation of citizenship under penalty of perjury.

One of Kobach’s proposed amendments was nearly identical to hypothetical language used by the ACLU in court documents to show how the motor voter law could be amended to allow states to require documentary proof of citizenship.

In his deposition, Kobach ridiculed the idea that the similarity in language was anything but a coincidence.

“I think it is inconceivable that I would have had your brief in my hand when drafting this,” Kobach said in response to questioning by ACLU attorney Dale Ho.

U.S. District Judge Julie Robinson ordered excerpts from Kobach’s deposition unsealed Thursday. The excerpts show a sometimes combative Kobach responding to Ho’s questions about his proposals to amend the motor voter law, which Kobach said would have been necessary if the ACLU prevails in the case.

In response to Ho, Kobach, a Republican, denied that he drafted the proposed amendments in preparation for his meeting with Trump in November. Kobach insists that his proposal was a “draft of a draft” and that he wrote it in late summer or early fall of 2016, ahead of a 10th Circuit Court of Appeals ruling in the case, and well before the presidential election.

“I’m telling you flatly that I did not know I would ever be meeting with the president-elect when I drafted this because he was not (yet) elected.”

The 10th Circuit Court of Appeals ruling upheld Robinson’s order blocking the proof-of-citizenship law in Kansas.

Kobach was photographed at his November 2016 meeting with Trump clutching a document with a list of priorities for the Department of Homeland Security. At the time, Kobach was a candidate to lead the department, which he acknowledges in his deposition.

The unsealing of portions of Kobach’s deposition came after Robinson earlier this month ordered the unsealing of heavily redacted portions of the documents he shared with the Trump transition team.

One document, which was mostly blacked out, listed 23 points. The third, under the heading “Stop Aliens from Voting,” says “Draft Amendments to the National Voter Registration Act to promote proof-of-citizenship requirements.”

Kobach contends that noncitizen registration is a pervasive problem, but one of Kobach’s own expert witnesses in the ACLU case said that no more than .07 percent of Kansas’ 1.8 million registered voters were noncitizens.

Kobach is vice chairman of the White House’s election integrity commission, which was established by Trump after he claimed that millions of people voted illegally last November — a claim widely discredited by election officials and experts.  

Kobach also refers in his deposition to conversations he had with “a friend of mine,” Rep. Steve King, an Iowa Republican known for his hard-line views on immigration.

The congressman, Kobach said, had agreed to introduce legislation to amend the National Voter Registration Act as a contingency plan if the ACLU prevails in their lawsuit.

"If we lost this lawsuit ... if it were necessary to amend the NVRA to restore the original meaning of the NVRA because you (the ACLU) had succeeded in changing it through litigation," Kobach testified that he asked King, "would he be willing to carry an amendment if I ever gave one to him, and he said yes." 
 

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