This is part of a series on voting in America, which will run up to Election Day in November. For part 1, on the importance of voting, go here.
The modern American crusade against voter fraud has always been propelled by faith. That is, an insistent belief in things unseen — things like voters who show up at the polls pretending to be someone else, or noncitizens who try to register and vote illegally.
Fraud like this is so rare as to be almost unmeasurable, and yet its specter has led to dozens of strict new laws around the country. Passed in the name of electoral integrity, the laws, which usually require voters to present photo IDs at the polls or provide proof of citizenship to register, make voting harder, if not impossible, for tens of thousands of people — disproportionately minorities and others who tend to vote Democratic.
The high priest of this faith-based movement is Kris Kobach, the Kansas secretary of state and gubernatorial candidate who has been preaching his gospel of deception to Republican lawmakers for years. He has won plenty of converts, even though he has failed to identify more than a tiny handful of possible cases of fraud. In his eight years as secretary of state, he has secured a total of nine convictions, only one of which was for illegal voting by a noncitizen; most were for double-voting by older Republican men.
For the past two weeks, however, Mr. Kobach has been forced to make his case in a far more rigorous setting — the fact-finding process of a federal trial. In a Kansas City courtroom, Mr. Kobach and his fellow true believers have struggled to defend a 2013 state law that requires prospective voters to prove their citizenship before they can register.
It has not gone well for Mr. Kobach. The lawsuit, brought by the American Civil Liberties Union on behalf of Kansas residents who were blocked from voting under the new law, contends that the legislation violates federal law, which requires only that prospective voters attest to their citizenship under penalty of perjury. Meanwhile, it disenfranchised tens of thousands of Kansans, who were disproportionately younger voters or voters with no party affiliation.
And how many noncitizens did the law stop from voting? Squint really hard. One would think that after all these years, Mr. Kobach would have something to show for his dogged efforts. Yet according to his own witnesses, Kansas, which has 1.8 million registered voters, has identified 129 noncitizens it says registered or tried to register since 2000. Of those 129 people, 11 actually voted, and it’s not clear how many of these cases represent intentional fraud, as opposed to honest mistakes or clerical errors. But Mr. Kobach is convinced, calling these findings “the tip of the iceberg.” If so, the iceberg is melting fast.
Mr. Kobach’s game may work with partisan lawmakers, but not with federal judges. At the beginning of the trial, Mr. Kobach, who is representing himself, tried to introduce what he said were new data on the number of Kansans whose voter registrations were suspended for lacking proof of citizenship. Judge Julie Robinson of Federal District Court said no, reminding him that the deadline for introducing pretrial evidence had passed the night before. “We’re not going to have a trial by ambush here,” the judge said when Mr. Kobach tried again a few days later.
How does it feel to have your papers out of order, Mr. Kobach?
Of course, restrictive voting laws like these have never been about protecting electoral integrity. They’re about keeping certain people away from the ballot box, often based on who they are — or are assumed to be. On Tuesday, one of Mr. Kobach’s witnesses, a political scientist, Jesse Richman, testified that up to 18,000 noncitizens have registered or tried to register in Kansas. When the A.C.L.U.’s lawyer asked him about his methods for analyzing the state’s list of suspended voters, Mr. Richman said that, among other things, he flagged foreign-sounding names. What about a name like “Carlos Murguia,” the lawyer asked. Would he flag that one? Yes, Mr. Richman said. He was then informed that Carlos Murguia is a federal district judge who sits in the courthouse where the trial is being held.
It all seems like a big joke until you remember that laws like these have already had their intended effect. In Kansas, more than 22,000 people who tried to register had their applications suspended or canceled for not having proof of citizenship. And in Wisconsin, which President Trump won by fewer than 23,000 votes, a strict voter-ID law kept at least 17,000 voters from the polls in 2016.
Remember also that just days after the 2016 election, Mr. Kobach scored a meeting with President-elect Trump in which he urged the passage of a nationwide proof-of-citizenship requirement. A few months later, Mr. Trump appointed Mr. Kobach to lead his so-called election integrity commission. In January, after months of futility and infighting, the commission folded, having made no findings and issued no recommendations. No surprise there — there’s virtually nothing to find. There has been no epidemic of noncitizens voting, despite Mr. Trump’s baseless claim (endorsed by Mr. Kobach) that he lost the popular vote only because of millions of illegal voters. And there are hardly any examples of in-person voter fraud, the only kind that could conceivably be stopped by voter-ID laws. A federal judge once compared such lawsto using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Unfortunately, the courts have not always brought the appropriate degree of skepticism to these laws. The Supreme Court upheld the first voter-ID law it considered, in 2008, even though the Indiana lawmakers who passed it had not identified a single case of fraud that the law would have prevented. Former Justice John Paul Stevens, who wrote the opinion in that case, later called it a “fairly unfortunate decision.” Richard Posner, a former federal appeals court judge who also upheld the Indiana law, later said that voter-ID laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”
More recently, courts have gotten better about questioning the evidence and rationale for these laws, striking down some of the strictest ones, in Texas and North Carolina, for deliberately discriminating against minority voters. That’s the right approach. These laws masquerade as common-sense measures, but they are in truth anti-democratic shams, and it is gratifying to see them unravel in the harsh light of a federal courtroom.