U.S. District Judge Julie Robinson delivered a scathing rebuke Tuesday of Kansas Secretary of State Kris Kobach’s efforts to comply with her order blocking enforcement of proof-of-citizenship requirements.
Kobach is facing a possible contempt of court finding for failing to update the state’s election guide or ensure that counties are sending postcards to suspended voters. Tuesday’s hearing follows seven days of testimony in a trial over the state’s voter registration law.
Robinson issued a temporary injunction in May 2016, pending outcome of the case. On Tuesday, she accused Kobach of repeatedly engaging in gamesmanship and demanded evidence showing he enforced her instructions. Kobach said any failure to carry out orders is the fault of county election officers who don’t have to abide by his authority.
The judge said it isn’t her job, nor is it the job of American Civil Liberties Union attorneys who argued against Kobach in the case, to ensure he was complying with orders.
“But we’ve had to police this,” Robinson said. “I’ve had to police this over and over and over again.”
As proceedings began Tuesday, a smiling Bryan Caskey, the state’s elections director, walked into the media staging room at the Robert J. Dole U.S. Courthouse and took a seat to watch the hearing. Later in the morning, with ACLU attorney Neil Steiner fiercely demanding answers from him on the witness stand, Caskey’s smile vanished.
He was summoned to the courtroom during opening statements from Sue Becker, Kobach’s chief legal counsel, when Robinson pressed her to prove orders were followed. Becker said Caskey could testify but was running late because of a delay on Interstate 70. In the media room, Caskey stood up, put on his coat and left.
On the witness stand, Caskey confirmed he sent an email in October 2016 telling election officers for all 105 counties about a written order requiring notices be sent to anyone who had registered to vote without providing documents. Those notices had to be resent two days later when Robinson ordered the removal of language telling people they may not be registered following the November 2016 elections.
“They’re confused,” Robinson said. “They don’t understand what happens. ... I made it clear they are fully registered voters.”
She also returned to a conversation she had with Kobach about the postcards counties send to registered voters, listing their party affiliation and polling place. Kobach had assured her suspended voters would receive the same postcards as other voters.
Kobach said his office had made a good-faith effort to comply with the order.
“You are under an ethical obligation to tell me the truth,” Robinson said. “If you tell me you’ve done something, I trust that. That’s why lawyers are licensed.”
When Caskey testified during trial, he couldn’t say whether counties sent the postcards. He then contacted four of the largest counties in Kansas, and three of them said they didn’t.
Steiner forced Caskey to admit he wasn’t aware that Robinson believed postcards were being sent. Caskey couldn’t remember having a conversation with Kobach about postcards, and he never sent instruction to counties about postcards.
Steiner also asked Caskey if he could have updated the state’s election manual to reflect the temporary injunction. Caskey said he was too busy doing other things. What is more important, Steiner asked, than the judge’s order?
“Nothing,” Caskey said.
Kobach told Robinson the manual hasn’t been updated in years and that an update would require months of work from Caskey. Robinson described the failure to make changes more frequently as a “ridiculous process.”
She reminded Kobach that her orders in October 2016 were necessary because of his disregard for her temporary injunction five months earlier. Applicants during that time had continued to receive notices saying they couldn’t vote.
The prevailing question, Robinson said, is why the secretary of state doesn’t comply with her directives unless he gets caught.
“There’s been no change of rules,” Robinson said. “There’s been no confusion, and there’s been no ambiguity.”
The judge will issue a written decision on whether to hold Kobach in contempt at an unspecified date.