Law professor Richard L. Hasen writes:
“Just hypothetically, Dr. Richman, if you came across the name Carlos Murguia, would you code that as foreign or non-foreign?”
It was March 2018, and Dale Ho, who directs the American Civil Liberties Union’s voting rights project, had just asked one in a series of extraordinary questions in his cross-examination of expert witnesses for the state of Kansas in arguably the most important voting rights trial so far in the twenty-first century. In the case, Fish v. Kobach, a federal district court in Kansas was considering whether the threat of noncitizen voting in Kansas elections justified a state law that required people registering to vote to provide documentary proof of citizenship, such as a birth or naturalization certificate. In most other states, signing a statement affirming citizenship under penalty of perjury is proof enough. The ACLU was concerned that the Kansas law would not prevent a significant amount of noncitizen voting but would disenfranchise many eligible Kansans who could not produce the necessary papers. Before the court suspended the law, roughly thirty thousand people had their registrations rejected or put on hold because of the new requirement.1
Kris Kobach led Kansas’s defense team. Kobach, then serving as Kansas’s secretary of state, is one of the country’s leading public figures contending that voter fraud is a major problem in the United States. He was one of a small group of public figures I previously dubbed the “fraudulent fraud squad,” who built up the myth of rampant voter fraud that Republican legislatures have used to justify severe rules making it harder to register and vote. President Trump has parroted this myth repeatedly at MAGA rallies and elsewhere. Among prominent election officials and scholars, Kobach is the only one who backed Trump’s evidence-free assertion that potentially millions of fraudulent votes were cast in the 2016 presidential election.2
At trial, Kobach took the unusual step of personally heading the legal team defending Kansas’s law rather than allowing the state’s attorney general’s office to do so. A former law professor at the University of Missouri–Kansas City, Kobach examined and cross-examined witnesses, eventually not only losing the case but facing sanctions for misleading the court, for disobeying an earlier court order to make sure that eligible voters could register while the case was pending, and for “flaunting [flouting] disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” A magistrate judge fined Kobach $1,000 for misleading the court, and the state of Kansas had to pay the ACLU’s attorney’s fees spent trying to get Kobach to comply with the earlier court order. After the trial, the judge required Kobach to take continuing legal education courses on the rules of evidence or civil procedure. He eventually had his staff use a state-issued credit card to pay the $1,000 fine and the $359 cost of his online continuing education course on civil trial fundamentals.3
The significance of the trial was not lost on those who follow the voting wars, the fights exploding in the last few decades between those who state that voter fraud is a major problem and those who consider voter suppression the real concern. Fraudulent fraud squad members such as the Heritage Foundation’s Hans von Spakovsky, who served as one of Kobach’s expert witnesses, had been arguing for years about the supposed scourge of voter fraud, and in the Fish case their claims were finally put to the test in a court of law bound by neutral rules of evidence. Presiding over the case was Julie A. Robinson, the chief judge of the Federal District Court for the District of Kansas, a fourth-generation Kansan and the first African American on that court when appointed in 2001 by President George W. Bush.4
The case ended up in Judge Robinson’s courtroom after a series of motions and appeals had already resolved many of the complex legal issues it presented. Kansas had passed its law requiring documentary proof of citizenship as a prerequisite to voter registration in 2013, and the ACLU and others contended the law violated both the Constitution and parts of the National Voter Registration Act that Congress passed in 1993. One provision of the NVRA, also known as the “motor voter” law, required that states offer voters the ability to register to vote for federal elections when applying for a driver’s license. The law mandated that state DMVs require drivers to provide no more than the minimal information necessary to ensure voting eligibility, and the form had to include a portion in which a voter attested to citizenship under penalty of perjury.5
Kobach and Kansas argued that the attestation requirement was not enough to prevent noncitizens from voting, and that despite the federal motor voter law, the part of the Constitution granting each state the power to set the qualifications for voters gave Kansas the right to require registrants to show documentary proof of citizenship. The argument fit well with Kobach’s political position as a hardliner on illegal immigration: not only were people illegally coming to the country, they were voting (and no doubt voting overwhelmingly for Democrats). Challengers to the Kansas law argued that the motor voter law preempted it and that it violated the Constitution’s Equal Protection Clause by discriminating against voters lacking easy access to documents proving citizenship.
Eventually, the U.S. Court of Appeals for the Tenth Circuit held that Kansas could require documentary proof of citizenship for people registering at the Kansas DMV only if it could prove that despite the attestation requirement, “a substantial number of noncitizens [had] successfully registered,” and that requiring documentary proof was the least intrusive way to verify voter citizenship eligibility. When the case got back to the trial court, the two main questions the court had to resolve were whether a substantial number of noncitizens had registered in Kansas under the old law, and whether the new law was so burdensome on some voters as to be unconstitutional.6
Studies had found very little evidence of noncitizen voting, and the number of prosecutions and convictions for noncitizen voting was small. In the extensive News21 database of election crime prosecutions and convictions across the United States from 2000 to 2012, noncitizen voting accusations made up only 2.8 percent of cases, just fifty-six out of more than two thousand. Those fifty-six cases resulted in two convictions and seventeen plea deals. Kobach had successfully lobbied the Kansas legislature to give him the power to prosecute voter fraud, a power unique among state chief election officers. He nonetheless prosecuted only nine cases of voter fraud through 2017, and he earned only one conviction for noncitizen voting, from a legal (not illegal) immigrant. At least seven of his cases involved prosecutions of Republicans over the age of sixty, some of whom voted both in Kansas and in another state where they owned a second home or other property.7
Despite the lack of prosecutions even as Kobach scoured the state looking for noncitizen voter fraud, Professor Jesse Richman of Old Dominion University published a report claiming that up to thirty-two thousand noncitizens in Kansas were registered to vote under the old system. Kobach then chose Richman as an expert witness for the state, no doubt because his was the only peer-reviewed study suggesting such an astonishing rate of noncitizen voting—somewhere between thirty-eight thousand and 2.8 million voters nationally. Richman’s article, coauthored with Gulshan A. Chattha and David C. Earnest and published in Electoral Studies in 2014, described the rate of noncitizen voting as so high that it might have been responsible for Barack Obama’s winning the presidential election in 2008, as well as for passage of the Affordable Care Act, thanks to the election of Al Franken over Norm Coleman in the 2008 U.S. Senate race in Minnesota, which briefly gave Democrats a filibuster-proof majority in the Senate.8
At trial, using a methodology similar to what he had used in his study, Richman concluded that up to thirty-two thousand noncitizens in Kansas had registered to vote. He based his figures on self-reported voting and citizenship status in a nationwide public opinion survey called the Cooperative Congressional Election Study. Between 2006 and 2012, fourteen self-reported noncitizens in Kansas answered the CCES survey, and four of them reported voting. Richman applied the 4/14 rate reported in the sample to the 114,000 adult noncitizens in Kansas to reach the 32,000 noncitizen voters figure.9
One wonders how Richman’s paper got published. His methodology was deeply flawed because of the very small sample size, his failure to verify the citizenship status of the fourteen self-reported noncitizens in the CCES samples for Kansas, the fact that some citizens mistakenly report their citizenship status on surveys, and the tendency of people to overreport their voting. Harvard government professor Stephen Ansolabehere, a founder of CCES and one of the nation’s leading political scientists, testified that Richman misused the CCES data and that the correct interpretation showed a noncitizen voting rate approaching zero. Ansolabehere had published a peer-reviewed response to Richman explaining his errors. Richman’s Electoral Studies analysis was so flawed that two hundred political scientists signed an open letter criticizing it.10
At trial, Richman offered three other ways to estimate the amount of noncitizen voting. One method found a rate of zero, which Richman unsurprisingly discounted. The other approaches had serious methodological flaws. One of his studies sampled a population of Kansas residents who had their voter registrations put on hold because they lacked documentary proof of citizenship. From this “suspense” list, he and his assistants tried to identify “foreign sounding” names to determine whether the list was excluding large numbers of noncitizens from registering. He admitted that this methodology required making “subjective” judgments.11
The ACLU’s Dale Ho asked Richman why he had coded some Kansas residents on the suspense list with the last name “Lopez” as foreign and others not, but he did not get a good answer. Then Ho continued with a devastating line of questioning:
Q. Just hypothetically, Dr. Richman, if you came across the name Carlos Murguia, would you code that as foreign or non-foreign?
A. I’m sorry, could you, please, spell the name.
Q. Sure. Carlos, C-a-r-l-o-s, Murguia, M-u-r-g-u-i-a.
A. Probably.
Q. Probably what?
A. Probably would code it as foreign.
Q. Okay. Are you aware that Carlos Murguia is a United States District Court Judge who sits in this courthouse?
A. I am not.12
This was social science at its worst. Unfortunately for Kobach and his team, Richman was their strongest expert witness. Hans von Spakovsky fared even worse on the stand against Ho. Although von Spakovsky identified himself as an expert on election administration and on questions of voter fraud, he had a law degree but possessed no social science graduate degree, admitted that he had written no peer-reviewed studies on election administration, and said he had “no idea” whether the methods he used for studying voter fraud comported with accepted social science standards. Despite claiming to be an expert, he could not identify anyone else in the country whom he considered an expert on noncitizen voting. He said he was not aware of any voter registration rules anywhere in the United States that were burdensome to voters.13
Von Spakovsky had a serious credibility problem. I learned about it years ago while writing my 2012 book, The Voting Wars. I had been searching for proof of a single case since the 1980s, anywhere in the United States, in which someone tried to steal an election through impersonation fraud—the only kind of fraud strict voter ID laws are designed to prevent. It is an exceedingly dumb way to steal an election, because one would have to hire people to go to the polls claiming to be someone else, hope that the people being impersonated had not yet voted, hope that the people being paid to commit felonies would actually cast a secret ballot the way the payer wants, and repeat this process undetected on a large enough scale to sway an election. It is no surprise that the News21 database covering a dozen years contained only ten possible individual cases of such fraud, and none involving a conspiracy to steal an election. Election law professor Justin Levitt found thirty-one possible impersonators casting votes out of over a billion votes cast in the United States between 2000 and 2014, and he has since come up with two recent cases of possible attempted coordinated voter fraud via impersonation.14
I had no luck finding any such case while researching my 2012 book, but von Spakovsky claimed there was proof of impersonation fraud in an unpublished grand jury report of an investigation of the Board of Elections in Brooklyn in the 1980s. He would not share the report with me, so I could not confirm or refute his findings. He later explained his refusal by saying to the New Yorker’s Jane Mayer, “What am I—his research assistant?” Once I finally got hold of the report, I saw that it did not offer any proof of impersonation fraud, only of election crimes committed by election officials and party bosses, not by voters.15
Von Spakovsky was no more credible as a witness in the Kansas case. Attempting to prove a rise in voter fraud, his pretrial expert report partly relied on a 2012 news story from an NBC television affiliate in Florida about 100 people who were excused from jury duty because they were not citizens, yet who were on the voting rolls. But he admitted on cross-examination that he had not told the court about a follow-up investigation, which showed that at least 35 of the people on NBC’s list in fact had documentary proof of citizenship. (While it does not appear that NBC followed up with the others, in 2012 the Florida secretary of state released a list of 180,000 potential noncitizens to be considered for purging. After investigation, just 85 people were removed from voting rolls as noncitizens. At the time, Florida had about 12 million registered voters.)16
Then there was the case of the Somali American voters von Spakovsky erroneously accused of voter fraud. Ho asked:
Q. Mr. von Spakovsky, in 2011 you wrote an op-ed asserting that a 2010 election in Missouri that ended in a one-vote margin of victory included 50 votes cast illegally by the citizens of Somalia. Correct?
A. Correct. But it turned out apparently that was incorrect, which is why I did not include it in my expert report.
Q. Okay. Not talking about your expert report. I just want to talk about that op-ed for a second. You wrote that op-ed claiming that 50 non-citizens from Somalia voted in an election in Missouri, despite the fact that a month earlier there had been an election challenge—there had been an election contest in that case and a state court in Missouri issued an opinion, Royster versus Rizzo, finding that no fraud had taken place in that election. Correct?
A. I don’t know when that opinion was issued. I wasn’t aware of that when I wrote the piece, which was based on other reports.
Q. You’re aware of that now, right, Mr. von Spakovsky?
A. I’m aware of that now.
Q. You never published a written retraction of your assertion about Somali[] voters illegally participating in that election, right, Mr. von Spakovsky?
A. I don’t believe so, but I don’t recall when I discovered that.17
The truth was even worse than Ho’s cross-examination revealed. Von Spakovsky’s 2011 op-ed, syndicated in newspapers across the U.S., stated, “A 2010 election in Kansas that ended in a one-vote margin of victory included 50 votes cast illegally by citizens of Somalia.” The day it appeared, I pointed out on my Election Law Blog that the disputed election took place in Missouri, not Kansas, and that a Missouri court specifically rejected the losing candidate’s claim that Somali citizens had illegally voted in the election. The next day, the op-ed appeared in more newspapers, now saying the incident happened in Missouri, not Kansas, but repeating the lie about illegal votes. Von Spakovsky had corrected the name of the state in his op-ed by, at the latest, the day after he wrote it. But no retraction for his more substantive error has run at the time I write these words.18
Before the trial, both von Spakovsky and Kobach had described the noncitizen voting so far discovered in Kansas and elsewhere as merely the “tip of the iceberg.” Ho suggested that the two had coordinated their messaging, but whether or not they did, Fish v. Kobach was their chance to reveal the iceberg for all to see. If tens of thousands, maybe millions, of noncitizens were voting in the United States, and Kobach had been empowered to prosecute it in Kansas, there should be some evidence of this massive fraud. But he had nothing to show.19
In an opinion issued a few months after the trial, Chief Judge Robinson found that Kansas’s documentary proof of citizenship law imposed a serious burden on the state’s voters. She credited the testimony of plaintiffs’ expert Michael McDonald that the burden fell most heavily on the young and those unaffiliated with a political party, and she noted that tens of thousands of Kansans had had their voter registration applications put on hold or rejected.20
She further concluded that the burden on these would-be voters was unjustified. There was likely a minuscule amount of noncitizen voting in Kansas, but the few reports of potential noncitizen voting were more likely the result of administrative error or misunderstanding of the law than attempted felonies. “Evidence that the voter rolls include ineligible citizens is weak. At most, 39 [non]citizens have found their way onto the Kansas voter rolls in the last 19 years. And, as [plaintiffs’ expert] Dr. [Eitan] Hersh explained, given the almost 2 million individuals on the Kansas voter rolls, some administrative anomalies are expected. In the case of Kansas, this includes 100 individuals in [the state database] with birth dates in the 1800s, and 400 individuals with birth dates after their date of registration.”21
“There is no iceberg,” the judge concluded, “only an icicle, largely created by confusion and administrative error.”22
Kobach’s previous foray into the voter fraud fever swamp during the Trump era was the “Presidential Advisory Commission on Election Integrity.” President Trump established this commission to back up his unsupported claims of massive voter fraud, which he advanced as the reason Hillary Clinton won the popular vote in the 2016 presidential election. Trump named Vice President Mike Pence the nominal chair of the commission, but Kobach, the vice chair, was the driving force behind its operation. Kobach ran the commission meetings and seemed to dictate its agenda. Trump had established the commission in May 2017, but the following January, before the start of the Fish v. Kobach trial, he dissolved it with none of its work completed. It never issued a report.23
Trump’s commission to deal with phantom voter fraud looked like nothing that had come before it. After the 2000 election debacle that culminated in the Supreme Court case of Bush v. Gore, former presidents Jimmy Carter and Gerald Ford headed a blue-ribbon bipartisan commission looking for ways to improve the elections process. After more problems at the polls in 2004, Carter and former Republican secretary of state James Baker headed another commission. After long lines and still more problems in 2012, President Obama established a commission headed by his campaign lawyer, Bob Bauer, and Mitt Romney’s campaign lawyer, Ben Ginsberg. Each of these commissions was led by a prominent Democrat and a prominent Republican, with bipartisan representation and a professional staff. They received expert advice from the top social scientists in the United States studying elections.24
The Bauer-Ginsberg commission, aided by its research director, Stanford law professor Nate Persily, issued a set of bipartisan proposals for shortening lines at the polls, ensuring that voter registration rolls were accurate, and making sure that eligible voters would be able to vote in an efficient way. It was no accident that Brian Britton, vice president of Global Park Operations and Initiatives at Walt Disney World Company and an expert in queue management at Disney’s theme parks, sat on the commission.25
It was clear from the beginning that Trump’s commission was different. We will return to candidate Trump’s race-tinged and fact-free comments about voter fraud in chapter 4. But as soon as Trump took office, his administration removed from government servers, without explanation, the website and research of the Bauer-Ginsberg commission. In May 2017, he announced his new commission to look into voter fraud. Gone was bipartisan balance: the Republican Pence was appointed chair and the Republican Kobach was vice chair.26
The names of the commissioners were rolled out over weeks rather than announced all at once, as had been done with the other commissions. Eventually, four of the most notorious proponents of the myth of rampant voter fraud—Kobach, von Spakovsky, J. Christian Adams, a former Department of Justice lawyer, and former Ohio secretary of state Kenneth Blackwell—all joined. The Lawyers’ Committee for Civil Rights under Law dubbed them “President Trump’s Four Horsemen of Voter Suppression.”27
Adams, a frequent Fox News guest who warned of the dangers of voter intimidation by repeatedly citing the actions of a couple of “New Black Panthers” at a single Philadelphia polling place in 2008, now headed the Public Interest Legal Foundation. Among its other activities, PILF issued a report warning of an “alien invasion,” complete with an illustration of “a 1950s-style flying saucer approaching bucolic Virginia,” and giving the names of purported noncitizens on the Virginia voting rolls. Some of those falsely named “noncitizens” sued Adams for defamation, and Adams apologized to settle the suit. Blackwell was perhaps best known for his decision in 2004, which he later reversed under pressure, to have Ohio election officials reject some voter registration forms because the applications were not printed on heavy enough paper.28
I myself received a shout-out from Adams in documents released in litigation after the commission closed. In an email exchange with von Spakovsky and some PILF employees at the time of the commission’s founding, Adams commented on my earlier criticism of their work perpetuating the voter fraud myth: “Rick Hasen is a raw enemy activist. . . . He is the central organizing location of our foes. He is going to get very ugly toward me and Hans when/if we are nominated by the President to the Voter Fraud Commission.” Logan Churchwell, the spokesperson for PILF, urged Adams to “push” my “buttons” so I would become “unhinged.” “Sick of him being the elder statesman in the eyes of the MSM [mainstream media].”29
When fully constituted, the commission had seven Republicans and five Democrats. Three of the five Democrats were unknown nationally in the election administration field. The other two were Bill Gardner, the secretary of state in New Hampshire, and Matt Dunlap, Maine’s secretary of state. Some Democrats who had long viewed Gardner with suspicion thought their doubts were confirmed when he agreed to serve on the commission. Dunlap claimed he joined in order to watch the process from the inside, a stance several election experts, including me, thought was naïve, but he later played a key role in the commission’s downfall.30
We later learned from partially redacted documents, released through a Freedom of Information Act request, that the lack of partisan balance on Trump’s voter fraud commission was a feature and not a bug. Before Trump named any members, von Spakovsky sent an email, which later got forwarded to Attorney General Jeff Sessions, laying out the case for excluding Democrats, academics, and “mainstream Republicans” from the commission. He and Adams were offered spots on the commission soon after.
Once it got going, the commission immediately ran into problems. Kobach directed staff to request individual voter registration records from each state, including names, addresses, dates of birth, and Social Security numbers. Apparently he meant to look for registered noncitizens by comparing those data to citizenship records at the Department of Homeland Security. Many states balked.
Some Democratic officials expected the matching procedure to be flawed and suspected the commission’s work would be used as a pretext for tougher federal or state voter registration rules. California secretary of state Alex Padilla released a statement reading in part: “California’s participation would only serve to legitimize the false and already debunked claims of massive voter fraud made by the President, the Vice President, and Mr. Kobach. The President’s Commission is a waste of taxpayer money and a distraction from the real threats to the integrity of our elections today: aging voting systems and documented Russian interference.”32
Some Republican officials thought the federal request was an intrusion on state sovereignty. Before he even received the commission’s letter, Mississippi secretary of state Delbert Hosemann said in a statement: “They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from. . . . Mississippi residents should celebrate Independence Day and our state’s right to protect the privacy of our citizens by conducting our own electoral processes.” Colorado citizens began canceling their voter registrations after the state agreed to comply with the request because they did not want the Trump administration to have access to their data. They reasoned that they could use Colorado’s same-day registration policy to reregister whenever they wanted to vote.33
Then there were the lawsuits. Common Cause and others sued the commission for violating the Privacy Act, which bars government collection of sensitive personal information under certain circumstances. The suits eventually led to the destruction of all collected voter data after the commission disbanded. Other suits argued that the commission’s rules violated the federal Paperwork Reduction Act as well as various state laws protecting the privacy of voter information.34
Maine secretary of state Dunlap, one of the two prominent Democrats on the commission, sued it for violating a federal law governing transparency and fairness in the operation of presidential advisory commissions. He and other commissioners alleged that Kobach was acting in secret and without input from Democratic commissioners. Dunlap won and eventually obtained several commission documents he had not been allowed to see—which he then publicly posted. The released documents showed that even before they joined the commission, von Spakovsky and Adams were providing specific suggestions to Kobach and commission staff (but not its Democratic members) about the exact information to request from each state regarding its voter registration practices. The documents also show the commission never uncovered any evidence of significant voter fraud. The failure to find evidence supporting the need for laws to combat noncitizen voting and voter impersonation is the only plausible reason for the commission’s lack of transparency.35
The members met only twice. After their first official opening meeting, in Washington, D.C., in July 2017, they met in September 2017 in New Hampshire, where they were hosted by Secretary of State Bill Gardner. In that meeting, Kris Kobach presented and then walked back unsupported assertions he had first floated on the Breitbart website, that bused-in Massachusetts residents illegally voted in the Granite State.
Another meeting was planned for late January 2018, but President Trump pulled the plug on the entire enterprise, blaming “endless legal battles at taxpayer expense” and lack of cooperation from Democrats. He did not mention Republican resistance or Mississippi secretary of state Hosemann’s suggestion about local swimming spots. Kobach told Breitbart that the effort to find evidence of noncitizen voting would continue at the Department of Homeland Security, without Democratic interference and lawsuits: “The investigation will continue, and it will continue more efficiently and more effectively. . . . By throwing their food in the air, they just lost their seat at the table.” He told NPR that he would remain as an “outside adviser” on the project. That announcement was quickly rebuffed by DHS officials, who said Kobach would play no role. As far as we know, DHS conducted no subsequent investigation of noncitizen voting.36
One White House adviser, or perhaps it was Vice President Pence himself, told CNN that the commission was a “s[hi]t show” that had gone “off the rails.” The adviser suggested that the vice president’s “team . . . should have seen that assignment as a s[hi]t sandwich and treated it like a book report. . . . Avoid trouble, cite real instances of voter fraud, address structural and technology problems, make recommendations and move on.”37
The collapse of the Pence-Kobach fraud commission and the Fish v. Kobach trial were watershed moments in the modern history of voter fraud mythmaking and attempts at voter suppression. For years, people like Kobach and von Spakovsky had spun stories of voter fraud by relying upon anecdotal accounts, innuendo, falsehoods, and accusations that almost never panned out. Most of this cheap talk was not subjected to cross-examination or rigorous study. The trial and commission fiasco changed all that.
The only rational conclusions to be drawn from these two episodes are that voter fraud is extremely rare, and that spurious claims more likely serve as a pretext for passing laws aimed at making it harder for people likely to vote for Democrats to register and to vote. Kobach rejected this premise, telling NPR’s Robert Siegel after the collapse of the commission that “critics were making a bizarre and frankly idiotic argument. They were claiming that by looking at the issue of voter fraud, that was going to cause state legislatures to pass laws that would, in their view, make voting more difficult.”38
But it was Kris Kobach, meeting with Trump during the 2016 presidential transition period, who used false claims of massive voter fraud as a basis for recommending legislation amending the federal motor voter law to allow states to require documentary proof of citizenship before voting. And the commission that Trump picked Kobach to head was designed to provide cover for such legislation. A sharp-eyed AP photographer captured a picture of Kobach holding a briefing outline after his meeting with Trump that included that recommendation; the $1,000 fine Kobach later received in the Fish case was for misleading the court and the ACLU about the outline’s content. He apparently had modeled his proposed amendment to match what the ACLU, in a 2016 legal brief, wrote that the motor voter law would have to look like if it in fact allowed Kansas to require documentary proof of citizenship before voting.39
Fish and the commission’s work showed that noncitizen voting and voter impersonation fraud weren’t icebergs, or even icicles. They were puddles that evaporated in the sunlight of public inspection and legal examination.