U.S. District Judge Julie Robinson on Wednesday ruled Kansas Secretary of State Kris Kobach was in contempt of court for failing to comply with her orders in a lawsuit over the state’s voter registration law.
Robinson ordered Kobach to pay for attorney fees for litigating the contempt motion, with additional remedies to be determined later.
American Civil Liberties Union attorneys complained Kobach routinely defied a temporary injunction issued by Robinson in 2016 to block enforcement of the state’s proof of citizenship law.
Kobach’s office refused to update language on its website suggesting that new voter applicants may not be able to vote after November 2016 elections. Kobach also failed to follow through on a promise to Robinson that counties would send postcards notifying voters they could participate in elections, even if they failed to show a birth certificate or other documents when they registered.
“The judge found that Kris Kobach disobeyed the court’s orders by failing to provide registered voters with consistent information, that he willfully failed to ensure that county elections officials were properly trained and that he has a ‘history of noncompliance and disrespect for the court’s decisions,’ ” said ACLU attorney Dale Ho. “Secretary Kobach likes to talk about the rule of law. Talk is cheap, and his actions speak louder than his words.”
Kobach for years has championed the need for strict voter registration laws as a way of keeping noncitizens from voting. At a trial last month, he struggled to provide evidence to support claims of widespread voter fraud.
Kobach’s chief legal counsel, Sue Becker, argued in the weeks leading up to the trial that it wasn’t necessary to send postcards. It wasn’t until the contempt hearing that Kobach “changed course,” Robinson wrote, and “claimed he had personally directed his staff to ensure that postcards be sent.”
Bryan Caskey, Kobach’s elections director, testified he didn’t know Robinson had ordered postcards, and he didn’t give written instructions for counties to send them. However, he claimed to have told county clerks to send the postcards during a conference call.
“It strains credulity to believe that Mr. Caskey, after months of denying that the court’s orders required him to send standard postcards to covered registrants, remembered a few days before the show cause hearing that he had in fact orally instructed the counties to send them,” Robinson said.
Caskey eventually revealed Kobach didn’t talk to him about the postcards and that an informal survey showed some of the state’s largest counties didn’t send them. Immediately after the contempt hearing, Caskey took actions to make sure counties were complying with the directive in advance of August primaries. Robinson said those actions were “too little, too late.”
She also said Kobach was disingenuous in arguing her orders were ambiguous. Kobach admitted during the contempt hearing that he understood individuals covered by the preliminary injunction should be treated no differently than other registered voters.
She pointed to an ACLU witness who testified that when he called the Sedgwick County elections office, he was told it wasn’t clear whether he was registered.
Kobach’s “confusing notices, and his patent failure to fully inform and monitor compliance with the preliminary injunction order, caused confusion and misinformation,” Robinson said.
A day after the contempt hearing, Kobach said it was clear his office had bent over backward to comply with the judge’s orders. As a candidate for the GOP nomination for governor, Kobach rallies supporters by telling them he likes makes the ACLU unhappy.
“As soon as the ACLU sues, I know we have made the right decision,” Kobach said during a debate last week.
Last year, another judge fined Kobach $1,000 for misleading the court over documents he hoped to shield from evidence. Micah Kubic, executive director for ACLU of Kansas, said Kobach paid for that fine out of his own pocket. This time, however, the entire office was found to be not in compliance.
Kubic said it was too early to provide a ballpark figure for how much Kobach’s office might owe. Robinson ordered plaintiffs to submit an application for attorney fees by the end of the month, with final remedies to be determined after she issues a ruling on whether the state law is constitutional.
“He has shown disregard for federal law,” Kubic said, “disregard for the truth about citizen participation in Kansas, and disregard for the values that we share as Americans, values that say we should work to increase citizen participation in elections rather than reduce it.”