Kris Kobach appears for a recording of Kansas Reflector’s podcast. A federal judge ruled his signature law, which required new voters to provide a birth certificate or other proof of citizenship, unconstitutional in 2018. (July 20, 2020, photo by Sherman Smith/Kansas Reflector)
TOPEKA — The American Civil Liberties Union and other attorneys want to be repaid more than $4 million for their five-year legal battle with Kansas officials who fought to restrict voter registrations under the false pretense of widespread voter fraud.
The proposed price tag adds a punctuation mark to the prolonged fight over former Secretary of State Kris Kobach’s signature law, which required new voters to prove their citizenship before registering to vote. Kobach suffered defeat during an embarrassing 2018 trial in federal court, and stiffed taxpayers with the bills when he was twice held in contempt and ordered to take a remedial law course.
Nadine Johnson, executive director of the ACLU of Kansas, said Kobach and others who were determined to defend an unconstitutional law were to blame for the cost of the lawsuit.
“That’s a choice they made,” Johnson said. “They can’t then come back and say that it’s our fault. They made that choice. You can’t throw up all these roadblocks, and then complain that we’re pushing through the roadblocks.”
The lesson for Kansas voters, she said, is “elections do matter, and the people who are in these positions wield an enormous amount of power that can have a considerable effect on taxpayer spending.”
Kobach’s law blocked the registrations of more than 35,000 eligible Kansas voters and dissuaded countless others from attempting to register.
The law was necessary, Kobach argued, because the handful of known cases of voter fraud were just the “tip of the iceberg.” When he failed in court to provide evidence supporting his baseless claim, U.S. District Court Judge Julie Robinson said the iceberg was “only an icicle” and ruled the law unconstitutional.
Kansas Attorney General Derek Schmidt and Secretary of State Scott Schwab picked up the baton when Kobach left office following his failed attempt to become governor. An appeals court again rejected the state’s arguments in support of the law, and the U.S. Supreme Court in December declined to consider the case.
“This law has been proven to disenfranchise people in this state,” Johnson said. “It has absolutely no connection to the claims they’re making about fraud that’s non-existent, have been proven to be without merit, and yet they continue. And so at that point, you really wonder what they’re trying to do in furtherance of this law, despite the harm it’s causing.”
Communications directors for both Schmidt and Schwab declined to comment.
Mark Johnson, an adjunct professor at the University of Kansas School of Law who represented a KU student in a joined case, said the appeals probably account for 25% of the total cost of attorney fees and expenses.
“I think the decisions to appeal as far as they could had a lot to do with politics,” Mark Johnson said. “I don’t think any of the Republican officeholders wanted to be accused of not fighting this thing, regardless of the merits.”
As first reported by the Associated Press, the ACLU began court proceedings in January to seek $3.3 million in reimbursements for more than 10,000 hours of attorney labor. Mark Johnson is asking for $700,000 in fees for his law firm, and another law firm that provided assistance asked for $100,000.
Those figures will be negotiated before the court rules on a final bill for the cash-strapped state.
“Think about what we could do with $4 million in Kansas,” said Kansas Rep. John Carmichael, a Wichita Democrat and attorney who has followed the case closely. “Think of the people we could help with $4 million.”
From the start of the case, Kobach and his two staff assistants were combative with the court and ACLU attorneys. He was caught lying about documents he brought to a meeting with then-president-elect Donald Trump, defied a direct court order, made late filings, and showed a lack of understanding for basic court procedures. The trial itself became such a spectacle that it attracted observers from the legal community.
“Meanwhile,” Carmichael said, “the evidence that Secretary Kobach presented to the court was farcical. Expert witnesses who regularly make the circuit speaking at conservative Republican rallies and testifying in cases like this and charging the state for their services clearly failed to persuade the judge that there was any merit in the overall hypothesis that Kansas elections are being stolen by non-residents, or as Secretary Kobach likes to refer to them, aliens.”
Recent court filings accuse the Attorney General’s office of dragging its feet on reaching an agreement on the cost of more than 10,000 hours of attorney labor.
“They litigated this case to the full, and they made it more expensive than it needed to be,” Mark Johnson said. “We had no choice. They resisted on everything.”
Kobach was elected secretary of state in 2010 with the promise to secure Kansas elections. He already had become a nationally known figure for his efforts to enact anti-immigration laws around the country. ProPublica and the Kansas City Star documented in a 2018 report how he profited from the endeavors and frequently left taxpayers on the hook for legal expenses when his laws failed in court.
As secretary of state, Kobach championed passage of the Kansas Secure and Fair Elections Act in 2012, winning bipartisan support from the Legislature. The law required new voters to provide a documentary proof of citizenship, such as a birth certificate, before they could complete their registration.
“The lie of voter fraud was repeated over and over and over until the point that people took it as gospel,” Carmichael said. “And because the voters believed it, legislators were put in a real tough spot. Either they vote for this based upon flimsy evidence, or they face the possibility of being defeated at the next election.”
Carmichael blamed the Legislature for repeatedly passing “foolish legislation” that warrants scrutiny from the ACLU. He said lawmakers have effectively mailed $10 million to the ACLU since he arrived at the Statehouse in 2013.
“If that’s the way the taxpayers want us to keep spending our money, then they need to keep voting for the people who made these terrible mistakes,” Carmichael said. “If they want to spend their money on something much more productive, or even tax cuts, then they need to ask themselves, ‘Why do we keep sending people like Derek Schmidt back to the attorney general’s office to joust at windmills at taxpayer expense?’ “
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