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The Fish v Kobach trial closed today, but Judge Julie Robinson will hear arguments tomorrow morning on contempt of court ruling against Secretary of State Kobach.

The day’s trial began with the defense calling pollster Pat McFerron to the stand. Confusion followed on whether he was being presented as a fact or expert witness in the trial. The Secretary of State’s Office hired McFerron to conduct a survey on the prevalence of Kansans possession of at least one of the documents to provide proof of citizenship. The court had previously ruled that McFerron could only testify to this survey if he were deemed to be an expert witness.

Judge Robinson also said that Secretary Kobach’s team had “violated the rules of civil procedure,” in putting forward McFerron, but said she would hear his testimony and rule later if she would admit any of it into the record.

Moreover, Secretary Kobach’s team failed to inform McFerron of the many requirements someone must submit to be considered an expert witness by the court. The lack of these essential requirements further puts McFerron’s testimony in question.

Cross-examination then pointed out numerous errors in McFerron’s survey that lead to significant questions on the reliability of the results.

Pat McFerron on the stand.

Plaintiffs’ rebuttal expert, Matt Barreto, a UCLA professor and founder of Latino Decisions, further detailed these errors.

Barreto found that McFerron’s survey was not a representative sample, induced bias in its questions and that the survey was implemented outside industry standards.

After Barreto, the trial moved to closing arguments.

The plaintiffs concluded by highlighting that the defense expert testimony was unreliable, and the defense failed to provide evidence of a substantial number of noncitizens registering to vote in Kansas. Of the 129 alleged instances of noncitizens attempting or successfully registering, only 36 successfully registered the plaintiffs argued. Furthermore, they claimed that the defense failed to provide that these instances were more than administrative errors or confusion on the part of noncitizens.  The plaintiffs closed saying that while the story of noncitizens voting is not real, voter disenfranchisement from documentary proof of citizenship is very real.

In his closing argument, Secretary Kobach reasserted his three definitions of substantial. 1) Fractional, that compared to the 1.3 million registered voters even thousands could appear small. 2) Consequential, were even one noncitizen voting, in Secretary Kobach’s option, is substantial. 3) Functional failure, meaning a hundred instances would be sufficient.

Secretary Kobach argued that the 129 alleged incidents met his later two later to definitions.  He went on further to say that even if there were zero evidentiary instances of noncitizens registering to vote the mere threat of the potential problem is enough justification for the law.

The ruling from Judge Robinson is anticipated to come down before the August primary election in Kansas but a few months from today.

Zachary Mueller

Author Zachary Mueller

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