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Daniel Nichanian Trump's claims of voter fraud are on trial in Kansas and Kris Kobach is losing

The case laid bare the lack of evidence behind the fraud allegations Republicans have used to justify voter suppression
Image: Trump stands with Kansas Secretary of State  Kobach
Donald Trump stands with Kansas Secretary of State Kris Kobach before their meeting at Trump National Golf Club in Bedminster, New Jersey on Nov. 20, 2016.Mike Segar / Reuters file
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President Donald Trump famously claimed, in the wake of his 2016 presidential win, that American elections are tainted by massive fraud. By falsely claiming that he had lost the popular vote because of millions of fraudulent votes, he laid the groundwork for states to toughen the registration process and for his party to weaken the federal protections enjoyed by prospective voters.

Trump, however, borrowed this suppressive song-and-dance from a now-former adviser, Kansas Secretary of State Kris Kobach, whose own assertions about voter fraud are on trial in his home state; the trial ended on Monday.

The trial has laid bare the imposture of voter fraud allegations: Not only is the problem of fraud limited, at best, but the solutions have prevented many thousands of eligible voters from exercising their franchise.

“Enforcing this law is like taking a bazooka to a fly,” the ACLU’s lead attorney Dale Ho told the court at the start of the trial. “The collateral damage has been thousands.”

“Enforcing this law is like taking a bazooka to a fly,” the ACLU’s lead attorney Dale Ho told the court at the start of the trial. “The collateral damage has been thousands.”

At question in the trial is a 2013 law in Kansas requiring prospective voters to produce proof of citizenship, absent which their application is left “in suspense.” People are asked for documents they may not have, and must spend considerable time obtaining them; in addition, the law “has a chilling effect,” in the words of the Tenth Circuit Court of Appeals, “discouraging otherwise qualified citizens, once rejected, from reapplying.”

At trial last week, finally compelled to provide some documentation for his allegation that there really is a substantial number of non-citizens crowding its voter rolls, Kobach was only able to point to 11 noncitizens who he says have voted since the year 2000. (To Kobach’s credit, that’s eight more individuals than he managed to identify in a trial two years ago.)

Meanwhile, the applications of about 18,000 Kansans (disproportionately young residents and Democrats) were in limbo in 2016; Michael McDonald, a political science professor at the University of Florida, more recently estimated the number of thwarted applications to be 30,000.

Despite the huge numbers of people they are effectively barring from the polls, Kobach and like-minded politicians have never provided adequate evidence of widespread fraud.

That pattern repeats itself around the country, in states which have accepted as an article of faith that there is significant voter fraud despite a lack of evidence. Arizona’s proof-of-citizenship law has had a similar impact: In Maricopa County alone, 40,000 applications lacking required documents were left unprocessed in 2016 with minimal follow-up. Wisconsin’s voter ID law deterred about 17,000 people from voting in the 2016 election — in two counties alone.

Or take Texas and its voter ID law: While state Republicans talk of “rampant” fraud, a study of state records performed by News21 found just 104 cases of alleged voter fraud between 2000 to 2011, a period during which 35.8 million ballots were cast there. But courts and studies have estimated that more than 600,000 Texans do not possess the sort of ID they would need to vote under the law.

Allegations of fraud are also used to justify legislation other than proof-of-citizenship and voter ID laws. Arizona lawmakers have invoked unsubstantiated threats to propose new limits on the ballot initiative process. And New Hampshire Republicans, emboldened by Trump’s false claim that he lost their state because people were bused in from elsewhere, have recently increased the burden applicants face in establishing proof for their domicile, which undercuts college students’ access. (That legislature is now considering yet more legislation to further restrict voter eligibility.)

Despite the huge numbers of people they are effectively barring from the polls, Kobach and like-minded politicians have never provided adequate evidence of widespread fraud.

This trial is the third time that Kobach has been given to prove his fraud claims, and the third time he has faltered.

The trial provided a telling example of this. According to Kobach, statistical models show non-citizen voting to be a far greater problem than his individual documentation attests. He cited, as support, a 2014 article published by political science professor Jesse Richman, as well as non-peer reviewed surveys that Richman has since conducted.

But when Richman found himself under cross-examination during the trial, he significantly qualified his claims, and neither he nor Kobach’s other star expert witness were able to cite an election in which fraudulent voting had proved decisive. By contrast, the experts called by the plaintiffs — including one of the professors who conducted the survey on which Richman’s article actually relied — forcefully debunked its conclusions. (The article in question has been repeatedly shown to be incorrect outside of the trial setting.)

To make matters worse, this trial is the third time that Kobach has been given to prove his fraud claims, and the third time he has faltered.

In 2015, the state legislature granted him the authority to prosecute voter fraud; two years later, Kobach had obtained a singular fraud conviction against a non-citizen—a far cry from the roughly 18,000 people he still claims are illegally registered to vote in Kansas. Then, in 2017, Trump entrusted Kobach with a presidential commission tasked with investigating the country’s election integrity. The commission was dissolved with no findings within a year.

If Kobach loses this trial, it would further erode his credibility, block Kansas’s citizenship law and blunt other states’ momentum toward similar legislation.

This Kansas trial is a rare occasion where Kobach has been forced to publicly account for his record of deceit. And it has provided a rare platform for voting rights defenders — currently shut out of the federal government and of most state governments — to publicly demonstrate why the voter fraud hype is a sham.

If Kobach loses this trial, it would further erode his credibility, block Kansas’s citizenship law and blunt other states’ momentum toward similar legislation, momentous achievements all for the ACLU, which is representing the plaintiffs.

Yet recent history also suggests that, no matter how much their claims are debunked, neither Kobach nor his allies will tire of repeating them. In the fall of 2017, for instance, Kobach published an article in Breitbart about fraud in New Hampshire. “Now there’s proof,” he wrote emphatically. His analysis was quickly and conclusively shown to be false, so much so that Kobach had to publicly backtrack. But instead of simply recognizing his error, he used it as an opportunity to sow further seeds of doubt. “Until further research is done, we will never know the answer regarding the legitimacy of this particular election,” he said.

Kobach will keep on filling the room with as much smoke as he needs to produce the impression that there must be a fire.

To counter these cynical games, nothing less will do than offering constant pushback and ridicule — the sort that made Kobach’s presidential commission unsustainable enough that the Trump Administration ended it — and championing a proactive agenda that enshrines the right to vote (via a new Voting Rights Act), makes it easier to register (via federal legislation that automatically registers people to vote, and not just at motor vehicle departments) and better protects access to the franchise from fabulation and manipulation by people like Kobach.

Daniel Nichanian is a postdoctoral fellow in political science at the University of Chicago.

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