KANSAS CITY, Kan. — Kansas Secretary of State Kris Kobach prepared for the "eventuality" of failing to defend voter registration requirements by drafting proposed changes to federal law.
U.S. District Judge Julie Robinson on Friday allowed the screening of a video showing Kobach being deposed in August 2017, including previously sealed testimony.
In the video, Kobach said he met with President-elect Donald Trump in November 2016 to discuss the possibility of being named secretary of the Department of Homeland Security. As first reported by The Topeka Capital-Journal, an Associated Press photograph revealed documents he took with him to the meeting.
Kobach denied drafting changes to the National Voter Registration Act for that meeting, saying he crafted the proposal before the election. The American Civil Liberties Union filed a lawsuit challenging the Kansas proof-of-citizenship law earlier in 2016.
The ACLU obtained copies of his proposed changes and other documents in preparation for a trial that began this week in federal court. Kobach said he planned amendments to the NVRA as a contingency to losing the case.
"This was my first exercise in preparing for that eventuality," Kobach said.
His proposed changes include authorizing and incentivizing states to require proof of citizenship in voter registration.
Trump advisers Reince Priebus, Steve Bannon, Stephen Miller and Jared Kushner joined Kobach in the post-election meeting, where Kobach said they talked about "the general issue of aliens voting."
"It effectively nullifies a citizen's vote every time a noncitizen votes," Kobach said, "and it potentially can swing the result of an election if the election is close."
Before showing the video Friday, ACLU attorneys dueled with Kobach over competing definitions of "fraud" and the qualifications of his expert witness.
Robinson at times took control of questioning, bearing down on whether the impact an illegal voter has on an election is more significant than denying votes to thousands of eligible citizens.
As the fourth day of testimony began, Robinson again scolded Kobach and his assistants, telling Kobach deputy Garrett Roe he was out of order while trying to explain to her how a court procedure was supposed to work.
Matt Caskey, the elections director for Kansas, returned to the stand Friday morning and deflected ACLU questions about whether he was providing the same election notices to registered voters as suspended voters who were cleared by a temporary injunction in this case. Caskey said the office has complied with all court orders, prompting Robinson to inquire whether Kobach had sent postcards to suspended voters as she verbally ordered him to do.
Caskey said he didn't know whether Kobach had done so.
ACLU then called expert witness Lorraine Minnite, a political science professor at Rutgers University, to offer her research on voter fraud. She drew a distinction between examples of illegal activity, such as a noncitizen mistakenly registering to vote, from the rare cases she considers to be "fraud," in which someone willingly breaks the law.
Minnite said she became interested in Kansas cases after Kobach began using a "tip of the iceberg" analogy as early as 2009 to describe an undetected mass of illegal activity.
"The evidence just didn’t support these allegations," Minnite said.
Hans von Spakovsky, a Heritage Foundation official who has taught law at George Mason University, disputed her view of "fraud," saying any illegal vote that is cast in an election defrauds the process.
Von Spakovsky was a member of Trump's now-defunct voter fraud commission, for which Kobach served as vice chairman. Unlike Minnite, his research has never been peer reviewed and doesn't adhere to academic standards.
"If an alien votes, whether they do it accidentally or intentionally, that negates the vote of an American citizen," von Spakovsky said.
Robinson challenged his logic. If one noncitizen can defraud the election process, she said, denying registration to eligible voters who have been blocked by the Kansas proof-of-citizenship law also defrauds the process.
The trial is scheduled to resume Monday and continue through Tuesday.