Former Trump Fraud Commission Leader Peddles Voter Fraud Myths in Federal Courtby Michael Pelle, Brennan Center for Justice April 4, 2018
Noncitizen voting is vanishingly rare. Unfortunately, individuals who seek to present myth as fact in court are not.
President Donald Trump’s voter fraud commission was abruptly disbanded in January, but some of its veterans still haven’t dropped their pitchforks. The commission’s leader, Kansas Secretary of State Kris Kobach, was recently in federal court personally defending his state’s requirement that individuals provide citizenship documents — such as a passport or birth certificate — when registering to vote.
In keeping with his long history of peddling myths about noncitizen voting, Kobach presented a parade of deceptive evidence and noncredible “experts” to the court. At times, Kobach’s own witnesses directly undermined his positions. And this was all on top of the comedy of procedural errors his legal team accumulated throughout the trial. A verdict is expected in a few weeks.
Kobach attempted to demonstrate two things during the lawsuit: (1) noncitizen voting in Kansas is a real threat to the state’s elections, and (2) documentary proof of citizenship requirement is not overly burdensome to voters. What resulted was a repackaging of the same baseless claims and pseudoscience that the fraud commission tried to promote.
Kobach’s witnesses failed to demonstrate noncitizen voting was a threat. But here’s what they did show:
- Noncitizen voting in Kansas is extremely rare.
Kobach’s misrepresentations were clear from the outset. His first witness, Sedgwick County Election Commissioner Tabitha Lehman, discussed a spreadsheet that purported to show 38 cases of noncitizens voting, registering to vote, or attempting to register in the county. Only five of the individuals on the list had actually voted, with the earliest case stretching back to 2004. Compared to the nearly 200,000 people who cast ballots in Sedgwick County in 2016 alone, the spreadsheet is hardly proof of widespread fraud.
- Noncitizen voting has never determined the outcome of an election.
Kobach also called upon Hans von Spakovsky – a fraud commission co-conspirator and legal fellow at the Heritage Foundation – to testify about the supposed prevalence of noncitizen voting nationwide. Von Spakovsky cited a misleading Heritage report that claims to list over 1,000 instances of voter fraud. Our analysis of the Heritage database found that only 41 cases it cites involved noncitizens registering or voting, with instances dating back to 1988.
Von Spakovsky later gave the court whiplash during his cross-examination, contradicting himself on a key point about the significance of voter fraud. He initially said: “A relatively small number of noncitizens could make the difference in a race that’s decided by a small number of votes. And we have cases like that all the time.” Shortly thereafter, he admitted that he couldn’t “identify a single case where the outcome was decided by noncitizen voting.”
- Statistical evidence provides no support for claims of noncitizen voting.
The star of Kobach’s witness list was supposed to be Jesse Richman, a professor at Old Dominion University who has become famous for dressing up wild claims of voter fraud in academic language. A 2014 paper by Richman, which President Trump citedas evidence for his outlandish voter fraud claims, prompted nearly 200 political scientists to sign an open letter denouncing Richman’s methods. On the stand, he estimated that the number of noncitizens on the voter rolls in Kansas could range from 1,100 to over 18,000 – figures based on surveys with comically small sample sizes. Harvard government professor Stephen Ansolabehere, a witness for the plaintiffs, testified that Richman’s research doesn’t “provide any real statistical evidence” of noncitizen voting.
Nonetheless, Kobach said 18,000 is the “best estimate” available. That particular number comes from an analysis Richman prepared for the lawsuit, in which six of just 37 noncitizens indicated on a survey they had registered or attempted to register to vote.
But not even Richman would back up Kobach’s shared belief with the president that illegal noncitizen ballots may have swayed the 2016 popular vote. During cross-examination, Richman said his research does not support Kobach’s conclusions and he is not aware of any studies that do.
Kobach wanted his witnesses to show that the proof of citizenship law is not a barrier to registration. Here’s what they actually said:
- The registration process for people without documentation is long and complicated.
Kobach summoned Jo French, a 75-year-old retiree, to describe the process Kansas created for those who can’t obtain the required records. Although French said she didn’t believe the process was burdensome, it certainly didn’t sound that way from her description.
In order to register to vote without the requisite documentation: French called the Kansas Secretary of State’s office; then, based on the advice she received, called her home state of Arkansas and paid $8 in an unsuccessful attempt to obtain her birth certificate (she was born in her family’s home); then called her old high school and church to obtain her high school and baptismal records; and ultimately had a friend drive her 40 minutes to Topeka for a hearing with the election board, where she presented the records she had collected from Arkansas, along with a family bible in which her date of birth was written. The meeting lasted about 30 minutes, and French said she enjoyed it. It is not shocking that others would not – only six people have been approved through this process.
- Looking at Kansas’ voter registration rate alone does not tell us anything about whether the law harmed voters.
Another Kobach witness, Steven Camarota, cited statistical evidence in a failed attempt to demonstrate the law did not burden voters. Camarota, the director of research at the Center for Immigration studies (a think tank the Southern Poverty Law Center labels an “anti-immigrant hate group”), presented data showing that Kansas’ voter registration rate remained unchanged between 2010 and 2014, before and after the law went into effect. But Camarota stated that he didn’t control for factors that could impact the registration rate, such as competitiveness of races.
Using Camarota’s analysis to make conclusions about Kansas’ law is overly simplistic to the point of irrelevance. To draw a timely comparison, it would be like a basketball team in the NCAA tournament losing one of its best players to injury from one game to the next, but still scoring about the same number of points in the second game. Concluding that the injury hadn’t hurt the team’s performance in the second game would be absurd – doing so would ignore a litany of factors, including differences in the quality of the opposing team in each game. It would be entirely plausible that the team would have scored more points had the star player been healthy, just as Kansas’ registration rate could have been higher had the law never been enacted. According to the ACLU, which is representing the plaintiffs challenging the law, the documentation requirement blocked over 35,000 individuals from registering to vote between 2013 and 2016.
Kobach’s defense over the past couple weeks hasn’t revealed any new facts. It was just a not-so-carefully curated repetition of the same baseless claim that led Trump to tweet he had won the popular vote, made by some of the same people who led the president’s federally-funded voter fraud witch-hunt. The Brennan Center, academic institutions, and state agencies have repeatedly concluded that noncitizen voting is vanishingly rare. Unfortunately, individuals who seek to present myth as fact in federal court are not.