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Supremes swat down Kobach again

Published on -6/23/2013, 2:43 PM

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Protests against Secretary of State Kris Kobach's immigration agenda physically came to his doorstep recently. A group advocating amnesty for illegal immigrants protested on Kobach's front porch, prompting Kobach to suggest future protests could be met with a report of gunfire.

Substantively, however, Kobach suffered a much more significant blow from Washington.

On Monday, the Supreme Court issued a ruling on an Arizona law near and dear to Kobach. Arizona approved Proposition 200 eight years ago, requiring prospective voters to provide citizenship documentation. Federal law only mandates that voter registrants sign an oath stating they are a citizen. Arizona's referendum went further than the federal law, shifting the burden of proof away from the government and onto the registrant.

Kobach has made a national name for himself as the champion of hard-line illegal immigration reform. Consulting on laws like Arizona's SB 1070, which allows law enforcement officials to stop people to check for immigration status, and developing Kansas laws, such as the 2011 bill requiring prospective voter registrants to show proof of citizenship just like in Arizona, Kobach personifies the immigration warrior in the United States.

The strategy may pay off for Kobach with popularity among movement conservatives, but for the second time in a year the Supreme Court has dealt his particular brand of policy a serious setback. In June 2012, the Supreme Court overturned multiple components of SB 1070 while giving Kobach a partial win by upholding the vital provision allowing police to demand proof of citizenship status.

Democrats have zeroed in on these laws, publicly speaking the language of inclusion while privately betting they would fare better with more of the potentially disenfranchised electorate voting. Republicans, trumpeting fraud prevention, quietly expect to reduce participation by young, Hispanic, and poorer voters and thus improve their own electoral math. With such a partisan divide on the issue, the bipartisanship of the Supreme Court's decision is striking.

During oral arguments three months ago, Kobach contributed to the conservative magazine National Review Online, claiming a liberal bloc of four justices would vote to nullify leaving five upholding for a majority. Kobach's prediction was drastically off. The lead author of the opinion was the bastion of high court conservatism, Antonin Scalia. The 7-2 opinion was a massive defeat for the proof-of-citizenship law, rejected by not only the most liberal member of the court but the most conservative as well. Kobach may take comfort from the decision being mostly a reaffirmation of federal supremacy over the states. Justice Anthony Kennedy's primary concern was that Arizona's law was stricter than its federal counterpart. Thus the precedent decision was more the court's partial affirmation of "Obamacare" than an extension of the SB 1070 ruling.

Kobach's penchant for damn-the-torpedoes policy is controversial in its very nature, so it is not surprising to see many of the laws he has written or consulted on challenged in the courts. Controversies like these are the reason courts exist. But Kobach's laws tend to be overturned at least partially when challenged in the judiciary. If Kobach is merely engaging in symbolic politics, the defense costs for Attorney General Schmidt's office suggest he is playing an expensive game positioning himself for either Capitol Hill or Cedar Crest.

Kobach would not tell reporters whether or not he planned on complying with the court's decision, but did say that he believed the ruling would have a little to no effect on Kansas law.

If Kobach does ignore the Supreme Court's decision he can expect some of those same groups who have protested against him in the past to bring federal action to enforce quicker than you can say "Voting Rights Act." With Kobach's 0-2 record, he probably shouldn't bet on a win any time soon.

Chapman Rackaway is an associate professor of political science at Fort Hays State University.

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