A court order issued Friday offers a crucial clue about just how Kris Kobach’s White House commission on voter fraud will likely try to restrict voting: by urging Congress to let states tighten ID requirements for voter registration, making it much harder for new voters to get on the rolls.
Such a move could directly benefit Kobach in the ongoing federal lawsuit challenging his strict Kansas voting law—raising a potential conflict of interest on his part, some experts say, that so far has gone unmentioned.
In the order, U.S. Magistrate James O’Hara fined Kobach $1000, accusing him of making “patently misleading representations.” At issue are documents that Kobach was photographed holding before going into a meeting with Donald Trump soon after last year’s election. The ACLU is seeking to make the documents public, arguing that they’re relevant to the group’s ongoing legal effort to block Kobach, who is Kansas’s secretary of state, from implementing a controversial state law requiring that voter registrants show documentary proof of citizenship.
O’Hara wrote in the order that an earlier court filing by Kobach “gives the strong impression that neither of the two at-issue documents relate to proposals by defendant to amend the NVRA’s eligibility-assessment provisions. Upon in camera review of the documents, the undersigned learned this is clearly not the case.”
In context, O’Hara’s meaning appears clear: Kobach’s documents propose weakening the National Voter Registration Act (NVRA) so that it would allow—or perhaps even require—states to enforce proof of citizenship requirements like Kansas’s.
Almost since the White House voting commission was announced last month, there’s been speculation that it would propose weakening the NVRA in a way that makes registration more difficult. But O’Hara’s court order makes it all but clear that Kobach already has a plan to do so.
Citing the NVRA, which broadly protects voters’ access to the rolls for federal elections, the ACLU has stopped Kobach from enforcing much of the 2011 Kansas law, which he championed.
“The reason Kobach wants this is because the NVRA has been a real difficulty for him,” said Danielle Lang, a lawyer with the Campaign Legal Center, which isn’t involved in the Kansas case. “In multiple avenues, the NVRA has stood in the way of his ability to enforce this requirement.”
Predicting what the White House voting commission will recommend is “all a bit of conjecture,” Lang cautioned, since it won’t release its report until next year. “But not too much.”
Any change to the NVRA of the kind that Kobach appears to be seeking could be devastating for access to the voter rolls. Kansas’s proof of citizenship law has kept at least 30,000 eligible voters from being added to the rolls, according to the ACLU, even as courts have blocked aspects of its implementation. If Congress acted, a flood of new states might well pass similar legislation, secure in the knowledge that federal voting law could no longer stop them. Georgia, Arizona, and Alabama have passed documentary proof of citizenship laws, though none are being strongly enforced.
And if Congress went further and mandated that states require proof of citizenship, the likely effect would be to dramatically reduce the rate at which new voters are added to the rolls nationwide, with huge implications for the makeup of the electorate going forward.
Separately, though, any recommendation by the White House commission to weaken the NVRA could raise conflict of interest issues for Kobach.
Katherine Clark, a government ethics expert at Washington University in St. Louis, said federal regulations bar federal employees or officials from using their position for private gain—and that’s not limited to financial gain. In essence, Kobach would have used his position as the vice chair and de facto leader of a federal body to recommend changing the law in a way that would benefit him in the ongoing Kansas case, in which he’s the named defendant. Add into the mix that Kobach, a Republican, announced this month he’s running for Kansas governor, so the outcome of the proof of citizenship case will likely have political repercussions, too.
“The advocates who are concerned about Kobach’s participation on this commission may want to explore whether federal ethics standards prohibit him from participating,” Clark said, though she cautioned that it’s far from a slam-dunk that a court would ultimately agree.
A spokeswoman for Kobach didn’t immediately respond to a request for comment about the conflict of interest claim.
Of course, Kobach is a deeply committed ideologue who has built his career and reputation on support for strict voting and immigration laws. No one doubts that he’d favor weakening federal voting protections even if they weren’t being used in a lawsuit against him.
Still, it’s striking that the policy proposal that looks most likely to emerge from the White House voting panel would directly benefit the man running that panel.
“Generally, public policy should be made on the public interest,” said one Washington lawyer who specializes in conflict of interest issues, “not on the private interest of the folks who have been entrusted with decision-making power, or the power to make recommendations.”