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Kansas Trial with National Implications for Accessing the Ballot Begins

Today in Kansas, the federal bench trial began with a packed courtroom with a standing-room-only overflow. The trail, Fish v. Kobach, surrounds a 2013 Kansas law that requires documentary proof of citizenship upon registering to vote. At issue is a two-part test laid out by the 10th Circuit Court that placed the burden of proof on Kansas Secretary of State Kris Kobach to prove, one, that there are a substantial number of noncitizens voting in Kansas and two, nothing less than a proof of citizenship requirement will prevent the problem.

Waiting for the trial to begin.

Dale Ho, the lead attorney for the ACLU representing the Plaintiffs, opened by addressing the barrier that the law creates claiming that some Kansans are unable to produce such documents, do to time and cost.  Mr. Ho continued that the DMV can be inefficient in ensuring eligible voters fully comply with the requirement and that voter registration drives are made impossible.  Mr. Ho argued that they would prove that the proof of citizenship requirement is “burdensome confusing and inconsistently enforced.” Concluding that the law is like taking a “bazooka to a fly.”

In his opening remarks, Secretary Kobach focused on the legal definition of “substantial” outlining three perspectives.

First, in support of the Defense, Secretary Kobach, claimed that ten noncitizens voting would qualify as substantial due to the close margins in some Kansas elections. He then turned to rebut the Plaintiffs’ definition, characterizing it as fractional. Secretary Kobach asserted that compared to the 1.8 million registered voters in Kansas, even his high estimate of 18,000 would be considered small. Finally, Secretary Kobach proposed a compromised understanding suggesting that evidence of hundreds or thousands of noncitizens voting could be considered substantial in the eyes of the court.

After opening statements, the Plaintiffs called four witnesses–three who were personally affected by the law, and one expert. Two of the affected witnesses sought to register at the DMV in 2014 and believed they had completed their registration forms, only to be informed at the polls that same year that neither made it on to the voting rolls. Only sometime later, after casting provisional ballots were they alerted to the need to provide documentary proof of citizenship to cast a legitimate ballot.

One witness concluded, “it was futile,” to register at the DMV. The third affected witness testified that she could not locate her birth certificate to prove citizenship nor could she afford the purchase a new one from Maryland where she was born.

Dr. Michael McDonald, an expert in analyzing voter turnout, and a professor at the University of Florida, testified as an expert witness for the Plaintiffs.  McDonald testified to several important data points relevant to how the requirement may affect voter participation.

McDonald said that the more than 35,000 registrants placed on the suspended or canceled registration list represented about 12 percent of the total new registrants from the time the law took effect in 2013 to March of 2016.

Moreover, McDonald said that it disproportionally affected voters 18 to 29 years old because they represent 43.2 percent of those placed on suspended or canceled registration list but only 14.9 percent of the total voter rolls. McDonald expanded saying, “burdens do tend to lower turnout,” and that younger voters were also more sensitive to any barrier to voting.

Compounding the problem, McDonald claimed that once a person votes they establish a pattern that continues that participation, thus preventing participation at an early age can have the opposite effect.

Kobach cross-examining the first witness.

Court ended with summary rulings from Judge Julie Robinson to allow testimony from all the expert witnesses from both sides. Judge Robinson, however, reserved judgment on the admissibility of the testimony of Steven Camarota, director of the anti-immigrant think tank Center for Immigration Studies, scheduled later in the week.

Day two begins tomorrow at 9 am for what looks to be a week-long trial.

Zachary Mueller

Author Zachary Mueller

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