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Crime and Courts

Week 3: Daily Developments Of The Kansas Motor-Voter V. Kobach Trial

Nadya Faulx
KMUW/File Photo

Kansas Secretary of State Kris Kobach is defending Kansas' strict voter registration laws in federal court in a trial that has now entered its third week.

Kobach is facing lawyers from the American Civil Liberties Union to test whether voter fraud is common enough to warrant the strict registration rules in Kansas, or whether doing so squelches the votes of tens of thousands to protect against extraordinarily rare cases of foreigners casting ballots.

A day-by-day recap of Week 1 can be found here, and Week 2 can be found here. Below are daily developments from Week 3, with the most recent information first (and if you want to follow on Twitter, @Celia_LJ is filing moment-by-moment):

Monday, March 19

A poll that Kobach relied on to show support for his voter registration requirements came under attack Monday as biased.

Kobach commissioned a survey of 500 Kansans. It found most favored the idea of making would-be voters show documents such as birth certificates, passports or military papers that prove they are U.S. citizens. It also concluded 99 percent of respondents had access to such documents.

The secretary of state argues that people can easily comply with the Kansas voter registration law. But the plaintiffs say the poll was designed to elicit the answers Kobach wanted, failed to use statistical weighting methods that are the norm and didn’t home in on why unregistered voters aren’t registered.

The ACLU’s attorneys got Kobach’s pollster, Pat McFerron from Cole Hargrave Snodgrass & Associates, to concede on the stand that one of the questions could be considered biased.

“In 2011, because of evidence that aliens were registering and voting in Kansas elections,” the question reads, “the Kansas legislature passed a law requiring that people who register to vote for the first time must prove that they are United States citizens before they can become registered. Do you support or oppose this?”

Nearly 80 percent of the people polled said they supported it.

Kobach’s side argued through their questioning of McFerron that the poll followed appropriate standards and sample sizing for a survey of its type.

But they struggled to include the pollster’s testimony in the trial, tripping up again on court rules that require disclosing expert witnesses in advance.

Kobach lawyer Sue Becker argued Judge Julie Robinson had already said McFerron is an expert witness, which the judge promptly explained wasn’t true.

Becker drew consternation from Robinson and ACLU lawyers by vacillating back and forth between treating McFerron as an expert witness or simply as a fact witness who was presenting poll results.

“You're being schizophrenic," Robinson told Becker.

The judge will decide later whether to include the pollster’s testimony as expert testimony.

Later in the day, the plaintiffs grilled McFerron on his lobbying and work as a Republican strategist. McFerron worked on Sam Brownback’s 2010 and 2014 campaigns for governor.

Link to McFerron’s poll and analysis

They called UCLA political science professor Matt Barreto, whose research and work includes poll design, to rebut McFerron. Barreto said the poll included too few people who weren’t registered to vote, was conducted too quickly and was worded in a way that could encourage people to claim they have documents such as passports, even if they don’t.

He also said it’s standard to provide information on the number of people who didn’t respond to a poll.

“It allows us to assess the reliability and generalizability,” Barreto said.

McFerron’s poll report didn’t show that information and polling was done within three days. The poll process — from inception, to design, to phone calls, to submitting the report to Kobach — was done within two weeks.

Kobach’s legal team pushed back, suggesting Barreto’s own research firm had engaged in biased polling because they had asked respondents for their reactions to statements President Donald Trump had made about Hispanics. They also questioned the fact that his research firm had hired a former Democratic National Committee Hispanic outreach official.

They also pointed to a newspaper article in which an ACLU lawyer describes Barreto’s research as “critical to our success” in challenging voter ID laws.

In their closing arguments, the ACLU told the judge the citizens of Kansas deserve a ruling that blocks Kobach permanently from implementing the proof-of-citizenship requirement that took effect in 2013.

“These stories about non-citizens stealing our elections are not real,” ACLU lawyer Dale Ho said. “The damage to democracy — when so many of our fellow citizens are silenced — is real.”

Kobach told the court he had met his burden to prove that Kansas had a substantial problem with non-citizen voter registration and that the court should respect Kansas’ legislative decision.

“The legislature spoke in 2011 by huge bipartisan majorities,” he said, “to ensure elections are secure.”

This post will be updated throughout the trial.


Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KMUW, Kansas Public Radio and KCUR covering health, education and politics. You can reach her on Twitter @Celia_LJ

To contact KMUW News or to send in a news tip, reach us at news@kmuw.org.