Donald Trump’s new commission to investigate voter fraud always had a whiff of the ridiculous. After all, it’s a taxpayer-funded probe to prove presidential tweets about imaginary illegal voters. Then came the announcement that Kris Kobach, its vice chair and driving force, is running for governor of Kansas. Nothing could better illustrate how brazenly partisan the whole effort has proven to be.
Kobach, of course, is no mere functionary. He’s one of the nation’s loudest voices demanding restrictive voting laws. The Yale- and Oxford-educated lawyer has crafted anti-immigration proposals across the country, such as the “show your papers” law in Arizona later largely struck down by the U.S. Supreme Court. He’s a rare hybrid: part skilled technocrat, part fuming nativist.
In 2010 he won election as Kansas secretary of State with lurid claims of wide voter fraud. In one instance, he declared sternly he had found evidence of a man voting from the graveyard. Reporters found that the unfortunate fellow was, to paraphrase Monty Python, “not dead yet.” He urges laws to require people to produce a passport, birth certificate, or naturalization papers to register to vote. About 7 percent of eligible voters just don’t have that paperwork. Courts keep striking down the idea. Kobach lashed out at the “communist League of Women Voters” when it challenged one move. (My organization represents the League against Kobach in similar cases.) He won enactment of a new law making him the only secretary of State with criminal prosecution authority. Despite his claims of epidemic fraud, he has convicted nine people all told.
Kobach was the only major official of either party to endorse Trump’s much-mocked notion he really had won the popular vote, when you “subtract” 3 to 5 million illegal voters. He called the claim “absolutely correct” and estimated that “3.2 million aliens voted in the presidential election.”
After Trump won, he seemed to be angling for a federal job. At one transition meeting, a grinning president-elect greeted the Kansan at the door, while photographers snapped away. Oops: Under his arm Kobach was carrying a memo, visible to all, outlining a move to gut the National Voter Registration Act (NVRA), which requires states to register voters at DMVs (known as “motor voter”). Show your papers, indeed!
The ACLU was already suing to challenge Kansas voter restrictions. Now it demanded to see the full document. Last week—just a day before he declared his candidacy—he personally filed a remarkably touchy legal brief. In heavily sourced paragraphs, Kobach moaned to the judge that the voting rights lawyer, Dale Ho, had been… mean. His “twitter page is filled with ad hominem attacks, frequently labeling [Kobach] as the ‘King of Voter Suppression,’ or making defamatory statements about him being part of the ‘fraud squad.’” (He need not worry. In defamation law, truth is a defense.)
All this underscores both the folly and the risks of Trump’s voting panel, the Presidential Advisory Commission on Election Integrity.
For starters, it’s a partisan exercise. Previous panels to explore voting law strained for representation from both parties. One was chaired by former President Jimmy Carter and former Secretary of State James Baker. The most recent was led by Bob Bauer, the lawyer for Barack Obama, and Ben Ginsberg, the leading GOP election lawyer who worked for Mitt Romney. Not Trump’s commission. Vice President Mike Pence and Kobach are joined by three other Republicans and only two Democrats. Its themes and work mesh tightly with Republican electoral strategies and support for restrictive laws.
It’s also unseemly to have an active candidate pursuing a highly charged election probe. Last week Kobach told Breitbart his race would focus on “insane” policies toward immigrants. Kansas, he insisted, is a “sanctuary state,” uniquely friendly to the undocumented. Now he has a taxpayer funded platform to amplify his charges. True, Kobach already has to supervise his own election. And some other panel members are also elected secretaries of State. But none are running for a top statewide job while supposedly sifting evidence.
All this certainly should worry Kansans. Next year they will vote in an election supervised by an ideologue, while he leads a high profile federal task force designed to prove widespread illegal balloting—and has unique power to prosecute those he claims are voting illegally. Does anyone doubt that could chill participation?
But it should trouble the rest of us, too. Kobach claims he has no “preconceived conclusions.” But everything points to a wave of ominous new voting restrictions. After all, Trump’s claims are just a cartoon version of the claims of fraud long been used to justify restrictive laws. In addition to requirements for documentary proof of citizenship, we can expect a drive to push states to purge voting rolls in a way that sheds thousands of eligible citizens.
Here’s the real tragedy: There are real risks to election integrity. We learned more about some of them this past week. There is no doubt, as James Comey testified, that Russia worked actively to undermine elections in the United States in 2016. The voter rolls are, in fact, a mess, with many errors, duplications, and, yes, dead people listed (though there’s no evidence they vote). And tens of millions of eligible voters are not on the rolls at all. It’s possible to act in a bipartisan way. In Illinois, for example, the state legislature unanimously passed a strong automatic voter registration bill that would add many to the rolls while bolstering security. If the governor signs it, Illinois would join eight other states and the District of Columbia with that innovative plan. That’s the way to protect voting rights and bolster democracy when it is under great stress.
If Kobach wants to bolster public confidence in the integrity of elections, there’s an obvious move: Step down from the commission. Run for governor. The voters of Kansas can then decide whether his vision of democracy matches theirs.
Michael Waldman is President of the Brennan Center for Justice at NYU School of Law. The new paperback edition of his book The Fight to Vote has just been published.