Politicians Keep Buying Kris Kobach’s Ideas Despite Track Record of Failure

Kris Kobach, the Secretary of State for Kansas and an anti-immigrant and vote-suppressing activist, has been angling for a job in the Trump administration since the election. But which of Kobach’s two long-time obsessions—making life miserable for immigrants (including his so-called “self-deportation” policies) or making it impossible for certain citizens to vote—would the Trump administration indulge? Earlier this month, Kobach finally got an answer: He’d get to pursue both with his appointment as vice-chair of the “Presidential Advisory Committee on Election Integrity.”

As detailed by my ACLU colleagues, the commission is premised on Kobach’s baseless claim, amplified repeatedly by the Trump administration, that millions of noncitizens voted illegally in the 2016 presidential election. This lie neatly advances Kobach’s twin goals of vilifying immigrants and promulgating voter suppression measures that disenfranchise American voters—particularly people of color, as well as young and old voters. And the commission will provide Kobach with a dangerous tool to advance his agenda, with its mandate to make policy recommendations on voting processes.

On May 18, the Washington Post printed an editorial calling the commission a fraud. Kobach’s hometown paper, the Kansas City Star, ran an editorial under the blunt headline, “Kris Kobach is a big fraud on Kansas voter fraud.” But despite the fact-checking, the president and his press secretary, Sean Spicer, have continued to double down on this claim about noncitizen voting even though media outlets across the political spectrum have definitively declared it to be “false,” “debunked,” “bogus,” “unsupported,” or (triggering meta-coverage about the media coverage) “a lie” by the president.

The president’s creation of the commission, and Kobach’s leadership role on it, are a clear signal of the Trump administration’s official policy of xenophobia and its disdain for the facts and the law. Consider Kobach’s track record:

In an editorial on Kobach’s record as Kansas’s chief election official, the New York Times called Kobach “a blight on true democracy.”

The federal courts agree. The U.S. Court of Appeals for the Tenth Circuit (in Fish v. Kobach, 840 F.3d 710, 755 (10th Cir. 2016)) held that Kobach had perpetrated a “mass denial of a fundamental right” when he blocked 18,000 Kansas residents from registering to vote under the federal motor voter law. In another case (League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)), the D.C. Circuit struck down Kobach’s requirement that Kansas voters using a federal voter registration form must submit documents proving their citizenship, holding that this scheme created a substantial risk that citizens would be disenfranchised. In a third case (Brown v. Kobach, No. 2016-CV-550 (Shawnee County Dist. Ct. Nov. 4, 2016)), a Kansas state court blocked Kobach’s effort to segregate voters into two categories—those who could vote in all elections in Kansas, and others who could vote only in federal elections. The Kansas court held that Kobach had usurped powers he did not have under state law and had fabricated his two-tier system for voter disenfranchisement “out of thin air.”

On immigration, Kobach’s ideas have been equally extreme and equally unsuccessful. His affiliation with extreme nativist organizations has been documented by the Southern Poverty Law Center. Notwithstanding those connections, Kobach has been able to hold himself out as an expert and persuade lawmakers to adopt his ideas. As a professor at the University of Missouri–Kansas City School of Law, Kobach was a primary author of Arizona’s Senate Bill 1070, known as the “show me your papers” law. The law openly espoused his “attrition through enforcement” model of immigration enforcement, a thorough failure in practice and as a matter of law. Kobach first articulated this theory in a 2008 law review article, proposing, in dispassionate faux-economics terms, that lawmakers should encourage undocumented immigrants to make the “rational” decision to leave the United States.

Fox News later described Kobach’s “attrition through enforcement” theory more plainly: The “government should make life so hard on undocumented immigrants that they ‘self-deport’ back to their home countries.” Fox was reporting on presidential candidate Mitt Romney’s political blunder in endorsing Kobach’s “self-deportation” theory—only a month after the Supreme Court struck down three key provisions of SB 1070 and limited the impact of a fourth. The Court restricted the “show me your papers” provision that required Arizona police officers to inquire into immigration status during traffic stops and other detentions by holding that detentions cannot be prolonged for the purposes of an immigration status inquiry. In his opinion for the Court, Justice Kennedy essentially rejected Kobach’s enforcement model and, indeed, his world view: “The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”

Lawmakers who have adopted Kobach’s anti-immigrant schemes have paid a heavy price. For example, Kobach persuaded the cities of Farmers Branch, Texas, and Hazleton, Pennsylvania, to adopt anti-immigrant ordinances that he had drafted, attempting to conscript landlords and local police to get into the immigration enforcement business. Kobach also persuaded those municipalities to hire him to defend those ordinances against constitutional challenges. The Fifth and Third Circuits struck down both ordinances, and both municipalities were left holding the bill for millions of dollars in attorneys’ fees and costs while also suffering other adverse economic impacts.

Beyond SB 1070, and similar state laws like Alabama’s HB 56, which went so far as to try to chill immigrant students from attending public schools (contravening the basic equal protection holding of Plyler v. Doe) and depriving immigrant families of public utility services, Kobach’s other immigration ideas have been abject failures. Kobach’s splashy effort (Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015)) to challenge the Obama administration’s Deferred Action for Childhood Arrivals program, on behalf of the aggressively anti-immigrant president of the union for U.S. Immigration and Customs (ICE) agents, also failed. And his scheme to undermine the Fourteenth Amendment guarantee of birthright citizenship never went anywhere.

Kobach has frequently played the behind-the-scenes consigliere to state and local officials on other ideas that have gone down in flames in the courts. In 2010, Kobach was tapped by Sheriff Joe Arpaio to train over 800 deputies in Maricopa County on immigration enforcement, after ICE stripped Arpaio of his authority to assist with federal immigration enforcement by refusing to renew his cooperation agreement under section 287(g) of the Immigration and Nationality Act. A federal district court and the Ninth Circuit later found that Arpaio had promulgated an unconstitutional policy of racially profiling Latinos during traffic stops, all in the name of immigration enforcement.

Emails disclosed in the SB 1070 litigation also revealed that Kobach frequently peddled himself for legislative and legal work with virulent anti-immigrant Arizona state senator Russell Pearce, putting down the competition in the state attorney general’s office as “not familiar enough with the complexities of immigration law.” In a throwback to the stereotype-based anti-Chinese laws of the late 19th century, Kobach instructed Pearce to ensure that SB 1070 would give Arizona police the power to interrogate and detain people for non-criminal infractions like having “cars on blocks in the yard” and “too many occupants of a rental accommodation.”

Kobach’s “legal losing streak” in both immigration and voting cases has been widely reported and is one sign of the flimsiness of his legal theories and doctrinal sand castles like “inherent authority.” Another sign is his reliance on sharp practices to cover up his lack of authority and good reasoning. Federal courts have called him out for misrepresenting and mis-citing case law (Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 503-04 (M.D. Pa. 2007)) and for engaging in “word-play meant to present a materially inaccurate picture” of documents in the record (Fish v. Kobach, No. 15-cv-2105-JAR-JPO, Doc. 320 at 7 n.22 (D. Kan. Apr. 17, 2017)).

Journalists sometimes have a curious tendency to report on Kobach’s physical appearance (“a tall, clean-cut figure”), his degrees from elite schools, or the fact that he is a father and an avid hunter. These are distractions from Kobach’s poor record as a policymaker and a lawyer. Let’s keep our focus where it should be: on Kris Kobach’s relentless campaign of xenophobia and disenfranchisement of people of color. He is wrong on the facts and the law, but he appears to be undeterred by his losses in the courts. It will take continued vigilance to uphold the Constitution against his attacks.

Image: Getty/Drew Angerer 

 

About the Author(s)

Cecillia Wang

Deputy Legal Director at the National ACLU, Director for the Center for Democracy Follow her on Twitter (@WangCecillia ).