ACLU Staff Attorney Orion Danjuma Discusses Voter Suppression Trial

Janine Jackson: It is passing strange that someone planning to run for governor of a state should be engaged in trying to change the law to make it much harder for some people to vote. But that’s just one angle on what’s playing out in a Kansas City courtroom, where a defendant, Kansas’s Secretary of State Kris Kobach, is representing himself in a federal trial over a state law requiring people to show citizenship documents, like a birth certificate or a passport, when they register to vote.

Kobach is the architect of that law, the force behind the now-disbanded “Presidential Commission on Election Integrity,” and the man who suggested that Donald Trump claim that he won the popular vote, “If you deduct the millions of people who voted illegally.”

Fish v. Kobach, as the case is named, opened March 6, a day before the 53rd anniversary of Bloody Sunday, when police beat and tear-gassed hundreds of non-violent civil rights activists on the Edmund Pettus Bridge in Selma, Alabama — activists marching for voting rights. The ACLU has been fighting Kobach’s plans for years. We’re joined now by Orion Danjuma, staff attorney in the ACLU’s Racial Justice program. Welcome to CounterSpin, Orion Danjuma.

Orion Danjuma: Thanks very much. It’s a pleasure to be with you.

Well, Fish v. Kobach is about this 2013 law that Kris Kobach pushed through in Kansas. What was the effect of that law, or its impact, such that the ACLU sued over it, and that brings us to where we are today?

Yes, so the law was passed initially in 2011, and began to be implemented in 2013, after extensive delays that the state gave to Mr. Kobach to start putting this law into place, and, as you mentioned in the intro, the law was passed under the pretense that there was this wave, this threat, of hordes of noncitizens who were potentially infiltrating voting booths, and voting in elections, and changing the results of American elections. And the law was basically passed based on these anecdotal reports that people saw someone who looked like a Muslim lady, or African immigrants, at polls, and were protesting the fact that those individuals might not be citizens.

After the law was passed, the state saw, almost immediately, tens of thousands of individuals whose voter registration applications were suspended, and blocked from registering, because they couldn’t come up with the documents that the state was demanding: a birth certificate or a passport. And part of that was the fact that the law was so poorly implemented and so confusingly explained — or not explained — to individuals, that even some people who had documents were denied an opportunity to register to vote. And then many others who were simply too poor to have the necessary documents, or couldn’t locate them, were unable to provide those documents by the time they needed to register to vote.

The ACLU brought suit, because approximately 14 percent of new voter registration applications, over 30,000 individuals, between January 2013 and December 2015, were blocked by this requirement. That restriction violates federal law, the National Voter Registration Act, which requires that states make voter registration simple and straightforward. So we brought suit to block this restrictive registration requirement.

And it was, in fact, blocked. And is this now part of trying to decide whether that law is going to stand at all? This is what we’re talking about now?

What happened is that in 2016 and in advance of the 2016 election, we brought suit and requested a preliminary injunction. And the judge who was assigned to the case issued a preliminary ruling in 2016, saying that it certainly looked very likely that this law violates federal law, which is supposed to make it easy to register to vote, but delayed a decision on the final merits until a full trial could be had after the election. And that judge’s decision was upheld by the Tenth Circuit Court of Appeals, and no appeal was taken to the Supreme Court at the time. So that preliminary injunction has blocked the law since 2016.

Basically, the judge then said to Secretary Kobach, you now have an opportunity to prove whether or not noncitizen voter registration fraud is actually a problem. That court and the Court of Appeals said that, from the evidence produced thus far, it seemed that the idea that noncitizens were registering to vote was so minimal as to be negligible. The court essentially said it is a nominal problem at best, and the Court of Appeals said that the secretary’s claims that lots of noncitizens registering to vote was simply pure speculation.

So what’s at issue right now, in this trial that’s taking place in Kansas City, is it’s really Secretary Kobach’s “put up or shut up” moment. For literally years, at this point, he’s been using this threat of noncitizens voting in elections as a pretext for restrictive voter registration requirements. And he’s only had to defend these wild allegations on Fox News, or various very sympathetic forums, and what’s different now is he has to come into court, to really come up with actual evidence.

And I can say that, at least from our perspective as a plaintiff, his showing has been completely disastrous. All of the evidence that he’s sought to introduce at trial has been riddled with errors, has been statistically incomprehensible, or simply outright fabrications and lies. Ultimately, it’s going to be up to the court to decide whether the evidence that he’s provided is significant or not, but that is the meaning of this trial, is it is essentially a test of the claims that he’s now made for years about whether noncitizens really are voting in elections or not.

This whole line, and I think corporate media are still credulous about it to a certain extent, is that there is some valid concern about voter fraud, that experts might disagree about the numbers, but you’re still given to understand that there’s some there there, that it’s a dispute, anyway. And even if an article winds up concluding, as the courts have, that voter fraud is not a significant problem, still the article posits it as the object of concern. And documents, including testimony from Kobach that the ACLU obtained, really illustrate the extent to which it is a purposive red herring. I wonder if you could just talk a little about what you have called “the plays in Kobach’s voter suppression playbook.”

Absolutely. So over the course of this litigation, shortly after the judge in this case entered a preliminary injunction blocking the law, after we filed suit — as I mentioned, that decision was issued a few months before the 2016 election — right in the wake of that election, the secretary of State was photographed going into a meeting with Donald Trump, and in his hands was a document, sort of a memo: Secretary Kobach’s master plan for the Trump administration. And one key item on it was to draft amendments to the National Voter R… — and the rest of that document was covered up by his arm.

So in the course of the litigation in advance of trial, we were able to obtain access to those documents. The secretary’s office fought us literally tooth and nail. I can tell you there are probably 60 docket entries; I’ve never filed as many papers over a mere document dispute as I did in this case. But the reason why it was so critical is that the secretary’s own evidence showed that his claims were completely false and invalid.

What we found is that not only was there this agenda that Mr. Kobach had brought into a meeting with Mr. Trump, Mr. Kobach had actually prepared a version of a draft amendment which would allow him to impose a birth certificate or passport requirement on voters, even if there were no proof at all that any noncitizens were registering to vote, and I think it’s really clear…. And then he was aggressively lobbying, immediately after the 2016 presidential election, to try to get Mr. Trump and his senior advisors to pass new legislation to make it harder to vote.

And why I think that’s so critical is that for years, the secretary has been saying that noncitizens are registering to vote; they’re everywhere registering to vote. But as soon as he’s forced to go into court to prove that that’s happening, he desperately tried to change the law to eliminate the requirement that he come up with any proof at all. And I think that’s really, really clear evidence that he just knows he doesn’t have any proof. He knows that this is really just about blocking individuals who he doesn’t want to vote from getting to the polls easily. And that is one of the reasons why laws like these are so dangerous, and why a trial like this, that gets to the bottom of what the evidence really is, is so important.

And it’s why I would hope that media would change their angle of approach to the story. They’re no longer balancing, rhetorically, “voter fraud” and “voter suppression,” in the same way that they used to. But I still feel that they fall short of describing an actual thought-out plan to suppress the votes of the young and the poor and people of color, and covering it and approaching it in that way. It still makes it sound as though “some people think this, some people think something else,” and we kind of have to hash it out.

So what I want to say is, you show that Kobach has had these plans for a while now, from before the election. And I’ve just read that if he loses this case in Kansas, he still has his friend Steve King in Congress, who is set to try to push through this we-don’t-need-evidence rule at a national level? He could try to win in a different way, if he loses in Kansas City?

Shortly after the election, in the early part of 2017, President Trump made a surprise announcement that Secretary Kobach was going to be appointed as the de facto head of the Voter Integrity and Election Commission, and that was a huge alarm bell for all of the voting rights community, because we knew that the only reason he would be in a position like that was to create a false narrative about the scope of voter registration fraud, to basically lay the foundation for an amendment to federal voting rights law, to make it much harder to vote.

Now, after the extreme incompetence that Secretary Kobach displayed — hiding documents from members of the commission itself, not abiding by any of the requirements for any presidential commission; he basically failed to do the bare minimum of what you need to do in an investigatory commission appointed by the president of the United States — now the commission has been disbanded, because it was so poorly run.

But you’re absolutely right, that either at the federal level, through federal legislation, or at the state level, by enacting restrictive voter registration regimes or new voter ID requirements, there is a core of individuals who are dedicated to suppressing the right to vote, not based on any legitimate fear of fraud, either by noncitizens or individuals voting in multiple states, but simply because they don’t want certain voters to participate in the political process. And that is a fundamental threat to our most important civil right and civil liberty. For Secretary Kobach, I think he felt there was a way to lock in a voter pool that he liked, the current set of registered voters, and erect a wall to make it as hard as possible for new, young voters, unaffiliated voters, to join the political process and get involved.

So for those of us who are interested in maintaining and expanding voting rights, we have to keep our eyes on the prize, really.

Absolutely. This is a part of the plan that Secretary Kobach, I think, now has exposed, because, to some extent, we were just lucky enough to see that there was a document at issue, and that gave us enough of a hook to get into court to see what he was cooking up behind closed doors. But you had better believe that there are all sorts of other plans that involve different voter protection laws that are outside of the ones that are involved in this case, and it is incredibly important to be alert to each of those issues, as events unfold in Congress and in the states.

I want to just answer one thing you mentioned earlier before, and that’s about balance between, you know, “some people think noncitizen voter fraud is a problem, some people don’t,” and there’s this sort of false equivalency that’s part of the national discourse on this issue. I think that’s right, but most importantly, I think it misses the point that in a case like this, we have direct evidence of bad intent by someone. We have the papers that show this plan. So that shows that it wasn’t just a sort of arbitrary, “some people think one thing; some people think another thing.” We know what the secretary thought. He tried to make it so that he’d never had to prove that a single noncitizen registered to vote, in order to disenfranchise 30,000 voters in Kansas.

We’ve been speaking with Orion Danjuma, staff attorney in the ACLU’s Racial Justice program. They’re online at ACLU.org. Orion Danjuma, thank you very much for joining us this week on CounterSpin.

I’m so happy to be with you.