KANSAS CITY, Kan. — American Civil Liberties Union attorneys on Thursday scrutinized examples of questionable voters compiled by the Sedgwick County elections commissioner and reported to Kansas Secretary of State Kris Kobach.
Of the 38 people in Tabitha Lehman's spreadsheet, only five were noncitizens who tried to vote, Lehman said.
During the third day of a trial that challenges Kobach to prove his claims of widespread voter fraud, the ACLU questioned Lehman about people who were mistakenly given registration forms after admitting they weren't citizens and compared the dozen illegal votes by five noncitizens to the 1.3 million ballots casts in her county while she compiled her list.
The spreadsheet contains three types of individuals: 18 noncitizens who successfully registered to vote, 16 who tried to register, and four who were blocked until an appeals court halted enforcement of the state's proof of citizenship law. Those four became citizens before voting.
Lehman, who was appointed to her position by Kobach, said her employees attended naturalization ceremonies in Wichita, where they helped new citizens register to vote. In several instances, those who filled out applications were found to have already registered. Those people were added to Lehman's list.
The ACLU says the state's proof-of-citizenship law prevented more than 30,000 eligible Kansans from casting votes. Kobach says the law is needed to prevent noncitizens from interfering in elections, estimating as many as 18,000 are illegally on Kansas voter rolls.
Supporting Kobach's argument, Lehman said her list includes 15 people who were blocked from registering but would have been able to vote without the law.
Bryan Caskey, the elections director for Kobach's office, said the office has identified 129 noncitizens who have registered since 2000. The ACLU has agreed to recognize 127 of the examples.
Caskey said the total is limited to people who have been specifically identified, and many more examples have been relayed to the office through the Department of Homeland Security and random callers.
"Members of the public have spontaneously reported instances," Caskey said.
In addition to proving there are significant numbers of illegal voters, Kobach must show the only way to solve the problem is by requiring applicants to provide proof of citizenship before registering to vote. Caskey rejected ACLU's contention that he could use information from jury questionnaires, where people are more likely to admit they aren't citizens.
"It would seem nonsensical," Caskey said, to add information to the state's voter database that would allow him to cross-reference jury questionnaires, and "I don't know where we could get them."
In a recurring theme for this trial, U.S. District Judge Julie Robinson repeatedly refused to allow Kobach and his team to introduce new evidence during Thursday's testimony.
After a failed attempt to question Caskey about the latest number of suspended voters in the state database, Kobach and Robinson engaged in a fiery discussion about Kobach's failure to provide updated figures for two years before trying to submit new numbers on the night before the trial began. If updated numbers were important, she said, he could have followed the rules.
"You’re not going to introduce new evidence through witnesses here," Robinson said. "That’s not fair. That’s surprise. That’s ambush."
Sue Becker, Kobach's chief legal counsel, shouted over Robinson with an allegation the ACLU team had been dishonest earlier in the week. Robinson told Becker she was out of line and admonished her for confusing the record.
Earlier in the day, the ACLU pointed out Lehman failed to follow the court's order that witnesses not listen to any other testimony or read news stories about the trial. Lehman admitted she had done both.
Before breaking for the day, Robinson told Caskey not to talk to attorneys before resuming testimony Friday morning.