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Opinion: Kris Kobach’s voter registration mess may cost Kansas millions. Bad law, or bad lawyer?

Source: 
Kansas City Star
Author: 
Michael Ryan
Date: 
Friday, May 1, 2020

Mark Johnson considers former Kansas Secretary of State Kris Kobach a friend. And he agrees with illegal immigration foe Kobach that ineligible voters shouldn’t be able to register and vote.

But their disagreement on what, if anything, needs to be done about it is a dispute that Johnson estimates will end up costing Kansas taxpayers into the millions of dollars.

That’s because Johnson, a Kansas City lawyer and election law professor at the University of Kansas School of Law, has alongside the ACLU won yet another legal round against Kobach’s 2011 law requiring proof of citizenship to register to vote. On Wednesday, the U.S. 10th Circuit Court of Appeals agreed with a lower court that the law placed an undue burden on voters.

Asked how much money the state’s taxpayers will eventually have to cough up for plaintiffs’ fees, Johnson said, “seven figures.” Meaning in the millions.

Why? Because Kobach, representing himself and the state in the 2018 trial, couldn’t produce more than several dozen bad voter registrations — whereas the law he pushed to passage prevented more than 30,000 Kansans from registering.

I’m all about voter registration laws. But Kobach simply couldn’t demonstrate this law’s effectiveness or any compelling state interest in having it.

“This was a case of a solution in search of a problem,” Johnson says. “The law was indefensible from the start because there was no problem for the law to deal with.”

My conservative friends around the country have no reason to know these gritty details, so they naturally wonder what’s the matter with Kansas. Nothing, in this case. In fact, the law requiring proof of citizenship may not be all that flawed — except that Kobach couldn’t prove there was any need for it, much less enough need to erect new barriers to voter registration.

In my conversations with Kansas Republicans and close court observers, it becomes clear the problem — now a seven-figure one — wasn’t the law so much as the lawyer. Kobach was not all that experienced in court, and in fact was sanctioned, found in contempt of court and ordered to take continuing legal education classes after his performance in the voter registration trial.

Johnson is diplomatic. Noting his advantage over Kobach in trial experience, Johnson said, “All I’ll say is, that showed when the case was tried.”

Told that other Republicans, including within the state government, have characterized Kobach as a trial court disaster and the voter registration case as butchered, Johnson pointedly says, “I’m not going to give you any commentary about how Kris handled the case. But I will not dispute any reports you might have received.”

Johnson is beyond diplomatic. He’s kind. He’s quick to note his friendship with Kobach, born somewhat of their crossing paths, of a sort, in their schooling: Johnson went to Yale and then to Harvard Law; Kobach went to Harvard and then to Yale Law.

“He’s probably always been the smartest guy in the room — in whatever room he’s in,” Johnson says of Kobach, a decorated debater in high school. “And I think Kris is a lot brighter than I am. Outside of his issues on immigration and voting rights, he’s actually a good guy. And he’s very bright. Just, on these two issues, he is completely wrong. Unlike a lot of people, I don’t think Kris is evil. He’s just wrong on these issues.”

And, unfortunately, he was seven-figure wrong.

Oddly enough after all this, and as the state attorney general and current secretary of state mull whether to appeal the latest ruling to the U.S. Supreme Court, Johnson says he’s willing to settle the case with the state: “I’d sit down with them this afternoon.” No word on whether the state would consider that, appeal the ruling or just accept the loss.

Unless by some miracle the high court bails out Kobach and Kansas taxpayers, they are both saddled — Kobach with a legal drubbing of his own making, and taxpayers with the bill for it.

Editor’s note: This column has been updated to remove inaccurate terminology related to the 2011 law requiring proof of citizenship to vote.

Faculty name: 
Mark Johnson