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The fourth day of Fish v. Kobach began with Elections Director, Brian Caskey, taking the stand. Once again, Secretary of State Kris Kobach’s team tried to introduce new evidence.  Judge Julie Robinson, again interrupted to deny new evidence, reminding Secretary Kobach’s team that their process was out of order. 

Brian Caskey on the stand.

Next, expert witness, Dr. Lorraine Minnite, a professor at Rutgers University and author of “The Myth of Voter Fraud” took the stand. Minnite testified that “instances of voter fraud nationally are extremely rare.” Minnite continued by defining voter fraud as the “intentional corruption of an election by voters.”

Moreover, Minnite said that allegations of voter fraud are not based on “empirical evidence,” but “have political use.”

In the expert report Minnite issued for the trial, she detailed such an instance from North Kansas City in 2010 where it was alleged that noncitizens had voted, allegedly changing the results of a close Democratic primary election. The court subsequently ruled that the allegations were unsubstantiated and everyone issued a ballot was a citizen. Despite the clear ruling, Minnite pointed to numerous examples over the following five years where Secretary Kobach continued to cite the case as an example of noncitizens voting–including in testimony to Congress in 2015.

Minnite also reviewed the spreadsheet of the alleged noncitizens attempting to register In Sedgwick County discussed in detail in court yesterday. Minnite testified that a better explanation for noncitizens attempting to register to vote would be administrative mistakes and confusion on the part of noncitizens, not an attempt to commit fraud.

Following Minnite’s testimony, the defense called their first expert witness, Hans von Spakovsky, a senior fellow at the conservative think tank The Heritage Foundation and a longtime advocate for greater restrictions to accessing the ballot.

Unlike the Plaintiffs’ expert witnesses, von Spakovsky has never published peer-reviewed work on the subject upon which he was to testify, nor had he ever previously served as an expert witness.

Mr. von Spakovsky asserted that the documentary proof of citizenship (DPOC), is only a “tangential burden,” and does not add any barrier to the vote. He added that the State Election Board hearing for those who lack DPOC is “all the flexibility that is needed.”

In his testimony, von Spakovsky, indirectly challenged Minnite’s testimony by offering a much broader version of fraud. Any time a noncitizen attempts to register to vote they are “defrauding legitimate citizens from a fair election,” stated von Spakovsky.

After Secretary Kobach’s finished questioning von Spakovsky, Judge Robinson sought to clarify the distinction in the two definitions of fraud. Judge Robinson asked von Spakovsky if one noncitizen voting in an election defrauds the whole electoral process to which he agreed. But, when Judge Robinson asked if a thousand individuals were denied the right to vote would that also be defrauding the electoral process, von Spakovsky disagreed. Appearing skeptical of von Spakovsky, Judge Robinson concluded that von Spakovsky sought to use the context to explain away why someone might be blocked to vote but refused the context that noncitizen vote might simply be a mistake.

ACLU attorney, Dale Ho, cross-examined von Spakovsky, getting him to testify that he could not think of any voter regulation in the entire U.S. that is a burden on voters.

Ho then revealed that as early as 2001, von Spakovsky wrote that the National Voting Registration Act (NVRA), under which Fish v. Kobach is contested, was a “universal failure.”

Ho also struck a blow to von Spakovsky’s credibility as an expert, when he revealed that von Spakovsky had donated to and sent fundraising emails for Kobach’s election campaign in 2010.

Moreover, von Spakovsky’s expert report for the court on noncitizens attempting to register and voting in Kansas relied solely on Kobach’s assertion of the 30 alleged cases from Sedgwick Country without Mr. von Spakovsky ever investigating the underlying data. Further still, Mr. Ho showed that the parts of Mr. von Spakovsky’s report that showed examples of noncitizens voting outside of Kansas contained several errors that used unrevised and inflated numbers. Like Secretary Kobach, von Spakovsky had also used the instance in North Kansas City as an example of the problem of noncitizens voting after the court had deemed otherwise.

Ho concluded his cross-examination by questioning von Spakovsky’s support for the 14th Amendment, which guarantees birthright citizenship. After attempting to dance around the issue, von Spakovsky conceded that he disagreed with the 14th Amendment guarantee of birthright citizenship. He testified that, in his view, at least one parent must be a United States citizen if a child is to be granted citizenship.

After attempting to dance around the issue, von Spakovsky conceded that he disagreed with the 14th Amendment guarantee of birthright citizenship. He testified that, in his view, at least one parent must be a United States citizen if a child is to be granted citizenship.

After von Spakovsky’s testimony, Secretary Kobach’s video deposition was played for the court. The deposition primarily concerned two previously disclosed (and much discussed) documents written by Kobach that sought changes to the NVRA. The deposition made clear that Secretary Kobach believes a ruling for the Plaintiffs in this case would change “the original meaning of the NVRA.”

At issue is the interpretation of the NVRA that holds that those attempting to register to vote should submit the minimum amount of information necessary. While Secretary Kobach believes documentary proof of citizenship is contained therein, the Plaintiffs have argued that such requirements would require a change in the NVRA that would allow a state to require “any information the state deems necessary” to register to vote.

In the deposition, it was revealed that Kobach’s draft amendment to the NVRA would add exactly the same language that the Plaintiffs laid out that would be necessary to change the NVRA to allow documentary proof of citizenship.

In the video, Kobach went on to say he secured a commitment from his “friend” Iowa Congressman (and hardcore nativist) Steve King, to introduce such an amendment to the NVRA if he loses this case. The deposition also discussed Kobach’s promotion of an amendment to the NVRA to encourage documentary proof of citizenship laws to President-elect Trump and his transition team.

The day ended with Kobach’s team asking to call another witness later in the trial to testify on their experience of going through the State Election Board hearing for lack of documentary proof of citizenship. The new additional witness seemed to catch the plaintiffs off guard, and Judge Robison ruled that all six of those who have attended such a hearing be made available for the Plaintiffs to interview.


The trial resumes on Monday, March 12.

Zachary Mueller

Author Zachary Mueller

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