Trial by Ambush Part of the Kobach Playbook
In a recent trial, Kobach has earned the judge’s ire for trying — more than once — to introduce data into evidence that had not been shared with the plaintiffs. It's similar to a tactic he used in a 2016 case.
Over the past couple of weeks, Kansas Secretary of State Kris Kobach has been personally defending a documentary proof of citizenship law — basically a requirement that voters have to produce a passport, birth certificate, or naturalization papers to become a registered voter. The trial is wrapping up, and the whole thing turned out about as well as a dentist trying to give himself a root canal.
Kobach and his team have blundered painfully through the basics of trial practice. U.S. District Judge Julie Robinson scolded Kobach and his team for having to explain what she called “Evidence 101.” Kobach earned the judge’s ire for trying — more than once — to introduce data into evidence that had not been shared with the plaintiffs. Her response: “That’s not how trials are conducted.”
Kobach should know better. In 2016, the Brennan Center, representing the League of Women Voters, was part of a group that challenged a U.S. Election Assistance Commission (EAC) decision permitting Kansas and two other states to require documentary proof of citizenship for applicants using the federal voter registration form. Kobach served as his own counsel in the case. And true to form, he attempted several of the same evidentiary stunts that he has attempted this month in the trial in Kansas.
When the Brennan Center and plaintiffs sought to block enforcement of the EAC decision, Kobach presented the court with evidence that he claimed defeated that effort. Only there was one small problem — he hadn’t shared the evidence with us first, a basic expectation in litigation. Just two weeks later, at a preliminary injunction hearing, he pulled the same move: passing up an “updated” affidavit to the judge that he had never shared with the other parties to the case. At the next hearing in the case he tried to do the same thing a third time — but the presiding judge turned away this attempted end-run around basic procedural principles. Generally, lawyers with strong cases do not need to try them by ambush.
The EAC case ultimately resulted in the court blocking the Commission’s decision to request documentary proof of citizenship on federal forms, which Kobach was defending. In this month’s case, Kobach has failed to offer evidence proving the outlandish claims of noncitizen voting that he has used to attempt to justify the need for proof of citizenship laws. That is not surprising: study after study has shown that widespread noncitizen voting does not happen. The Brennan Center’s own examination into claims of extensive noncitizen voter fraud in the 2016 election similarly found much ado about nothing.
Nevertheless, Kobach has a playbook and he’s sticking to it. Substantively, that means repeating discredited claims about noncitizen voting to justify suppressive voting laws. Procedurally, that means submitting evidence without regard to the rules. He’s done it before, he’s doing it now, and he will surely attempt to do it again.