The Limits of Lying and Cheating

AP Photo/Orlin Wagner, File

Kansas Secretary of State Kris Kobach talks with a reporter in his office in Topeka. 

A federal magistrate’s recent decision to fine Kansas Secretary of State Kris Kobach $1,000 for “deceptive conduct and lack of candor” is extraordinary for two reasons.

One, it’s a rare instance when a flat-out lie by President Trump or someone on his team is actually sanctioned. Two, it furnishes hard evidence that Trump’s so-called Election Integrity Commission, which Kobach helps lead, may seek to impose new national restrictions on voters.

Voting-rights advocates have long warned that the commission’s stated purpose—to uncover the supposed fraud that Trump claims cost him the popular vote—may well mask a darker agenda. Kobach is one of the nation’s leading champions of harsh new limits on registration and voting, and critics fear that his commission will seek to implement on a national scale the voter ID, proof of citizenship, and other voter restrictions that have been taking hold in a number of Republican-controlled states.

It was Kobach’s law requiring voters to document proof of citizenship just to register that indirectly led U.S. Magistrate Judge James O’Hara to fine him last week. As part of its lawsuit challenging that law, the Kansas chapter of the American Civil Liberties Union (ACLU) had asked the court to compel disclosure of documents that Kobach had been photographed carrying into a November meeting with Trump. The documents, captured in an AP photo, referenced possible changes to the National Voter Registration Act.

O’Hara did not make the documents public, as the ACLU had requested, but his order fining Kobach sheds light on their content. As evidence that Kobach “made patently misleading representations to the court,” O’Hara notes that Kobach had claimed the document was not relevant to the case, as the ACLU had argued, because it did not propose to “amend or alter” the eligibility requirements of the National Voter Registration Act.

O’Hara’s order finds that, on the contrary, his own review of the document shows that “the text proposed amending the NVRA’s provisions governing the type of information a state could require voter-registration applicants provide to enable the state to assess the applicant’s eligibility.” In other words, Kobach wanted Trump to consider tighter registration rules—perhaps along the lines of his Kansas proof-of-citizenship requirement.

O’Hara’s indictment of Kobach’s deceptions is withering. Kobach “made patently misleading representations to the court about the documents,” O’Hara found, which the court has the right to punish under its authority to “fashion an appropriate sanction for conduct which abuses the judicial process.” The court did not lift the confidentiality of the document in question, but it could still be made public as the case unfolds.

It’s not clear just how much of a threat Trump’s Election Integrity Commission actually poses to voting rights, given its lack of credibility. Established by executive order in May, the commission came under immediate fire as entirely GOP-led. Its chair is technically Vice President Mike Pence, though Kobach, the vice chair, is regarded as its de facto head. By contrast, previous presidential commissions to examine elections and voting, under Presidents George H.W. Bush, Clinton, and Obama, which were all scrupulously bipartisan.

Already under fire for his attempts to restrict voting, Kobach hurt the commission’s credibility still further when he announced this month that he will run for governor in Kansas, prompting speculation that he will use the commission as a political megaphone. The commission's first move, to request exhaustive voter information from the states, has drawn fire as an intrusion on voter privacy, and some state election officials have already signaled that they will not comply. Trump's appointment this week of Hans von Spakovsy, a conservative proponent of unsubstantiated voter fraud theories, has also drawn criticism.

The confusion stems in part from Trump’s own contradictory statements, including his unsubstantiated claim that three million to five million voters cast ballots illegally. Having long maintained that Russian intrusion in last year’s election was a hoax, Trump recently faulted Obama for doing “nothing” to stop it, and his administration has now suggested that the Kobach commission may even look into the issue. Though some Democrats on the commission have said Russia should be a focus, Kobach has been noncommittal, and the commission’s exact mission remains unclear.

Still, voting and civil rights groups, including the ACLU and the Brennan Center for Justice, have filed multiple Freedom of Information Act requests in a bid to hold the commission accountable and shed light on its agenda.

“We’re deeply concerned,” says Hilary Shelton, Washington director of the NAACP. GOP state legislators have long used the specter of voter fraud as a justification to enact voter-ID laws, elaborate limits on voter registration, and other restrictions that disenfranchise tens of thousands of eligible voters, says Shelton. “We’ve seen what happens in the name of voter-fraud prevention.”

GOP state legislators have pressed aggressively for a string of new voting restrictions in the four years since the Supreme Court’s 2013 Shelby v. Holder ruling to overturn a key provision of the 1965 Voting Rights Act. Since January, a half-dozen states have approved new restrictions on voter access, according to the Brennan Center for Justice—double the number in the previous two-year period.

“We have seen a real uptick this year,” says Wendy Weiser, director of the Brennan Center’s Democracy Program, adding that Trump’s talk of voter fraud and a “rigged” election “might have put some wind behind the sails of those trying to push voting restrictions.”

As quickly as states enact further ballot restrictions, however, voting-rights advocates have challenged them in court—often successfully. In Kansas, the $1,000 fine imposed on Kobach served as a reminder that in the defense of voting rights—and sometimes even of the truth—the courts remain a crucial backstop. Says Micah Kubic, executive director of the Kansas ACLU: “It’s incumbent on all of us in the advocate community to vigorously push back against the small misleading statements—and the big ones—every step of the way.”

This story has been updated. 

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