Fish v. Kobach (officially known since January 19, 2019 as Fish v. Schwab) was a 2018 bench trial in the United States District Court for the District of Kansas in which five Kansas residents, the ACLU and the League of Women Voters contested the legality of the Documentary Proof of Citizenship (DPOC) requirement of the Kansas Secure and Fair Elections (SAFE) Act, which was enacted in 2011 and took effect in 2013.
Kris Kobach, then-Kansas Secretary of State, attempted to claim these procedures were needed to protect the nation from a supposedly massive problem of vote fraud by people not legally allowed to do so, including 11.3 percent of non-citizens residing in the US amounting to some 3.2 million votes in 2016. The plaintiffs in this case claimed there was no evidence to support Kobach's allegations and that tens of thousands of American citizens were unnecessarily removed from voter rolls as a result of the law.
Trial hearings ran from March 6 to 19, 2018, with a contempt hearing for Kobach on March 20 with Chief District Judge Julie A. Robinson presiding. Robinson was appointed to the District court by President George W. Bush in 2001. On May 18 Judge Robinson ruled Kobach in contempt. Final rulings were issued June 18 and 19, 2018. In brief, Judge Robinson found that the defense had presented no credible evidence of the massive problem claimed and instead had erected substantial obstacles to voter registration by people eligible to vote per the National Voter Registration Act of 1993 and the Fourteenth Amendment to the United States Constitution.Robinson (2018-06-18, p. 2) She further found defendant Kobach in contempt of court.Robinson (2018-06-18, p. 117) The verdict was unanimously upheld upon appeal in 2020.
Timeline
2011-04-18: The Kansas Secure and Fair Elections (SAFE) Act was passed by the Kansas legislature in 2011 and signed by the Governor. 2013-01-01: The law takes effect. 2016-02-18: The American Civil Liberties Union filed suit against it.Election law @ Moritz The League of Women Voters officially supported that lawsuit. 2016-05-17: The United States District Court for the District of Kansas issued a preliminary injunction against enforcement of the Documentary Proof of Citizenship (DPOC) provisions of the SAFE act. 2016-05-24: Kobach appealed this ruling to the United States Court of Appeals for the Tenth Circuit. 2016-10-18: The appellate court upheld the injunction. 2017-06-23: US Magistrate Judge James P. O'Hara fined Kobach $1,000 for "deliberately attempting to mislead the court". 2017-07-05: Kobach appealed the contempt ruling. 2017-07-25: Chief District Judge Julie Robinson denied Kobach's appeal. 2017-08-02: Emergency Motion for Stay filed in 10th Circuit. 2017-08-02: 10th Circuit Order Denying Emergency Motion. 2018-03-06/19: Bench trial. 2018-03-20: Contempt hearing for Mr. Kobach. 2018-05-03: Appeal Docket in 10th Circuit. 2018-05-18: Contempt ruling. 2018-06-18: Findings of Fact and Conclusions of Law by Judge RobinsonRobinson (2018-06-18) 2018-06-19: Judgment by Timothy O'Brien, Clerk of the District CourtO'Brien (2018-06-19) 2018-07-02: Kobach appealed these findings and conclusions to the United States Court of Appeals for the Tenth Circuit. 2019-01-18: The new Kansas Secretary of State, Scott Schwab, substituted for Kris Kobach as the defendant. 2020-04-29: The ruling was upheld in 2020 by the 10th Circuit Court of Appeals. The court ruled that of the 39 noncitizens that appear on the Kansas voter rolls, most of them could be due to administrative anomalies. The court also said the law had an undue impact by cancelling or suspending the voter registrations of 31,089 voters.
Witnesses Judge Robinson further generally found the plaintiff's expert witnesses credible while expert witnesses for the defense were often found to be not credible.
Defense
Jesse Richman Kris Kobach hired Jesse Richman as a paid expert witness in 2018 for Fish v. Kobach. ProPublica summarized Judge Julie Robinson's assessment of Richman's conclusions as "'confusing, inconsistent and methodologically flawed,' and adding that they were 'credibly dismantled' by Ansolabehere. She labeled elements of Richman’s testimony 'disingenuous' and 'misleading,' and stated that she gave his research 'no weight' in her decision."
Richard Hasen called parts of Richman's testimony "social science at its worst."
Hans von Spakovsky Hans von Spakovsky, a member of Trump's voter fraud commission, was another expert witness for Kobach whose testimony ProPublica described as having been 'lacerated' by Judge Julie Robinson. She accused him of unsupported and misleading statements as well as false assertions. She said his opinions were based on preconceived beliefs related to his advocacy. "Defendant's expert Hans von Spakovsky is a senior legal fellow at The Heritage Foundation, 'a think tank whose mission [is to] formulate and promote conservative public policies. ... [He] cited a U.S. GAO study for the proposition that the GAO 'found that up to 3 percent of the 30,000 individuals called for jury duty from voter registration roles over a two-year period in just one U.S. district court were not U.S. citizens.' On cross-examination, however, he acknowledged that he omitted the following facts: the GAO study contained information on a total of 8 district courts; 4 of the 8 reported that there was not a single non-citizen who had been called for jury duty; and the 3 remaining district courts reported that less than 1% of those called for jury duty from voter rolls were noncitizens. Therefore, his report misleadingly described the only district court with the highest percentage of people reporting that they were noncitizens, while omitting mention of the 7 other courts described in the GAO report, including 4 that had no incidents of noncitizens on the rolls.A careful researcher may wish to see the exact passage summarized in Mr. von Spakovsky's testimony and Judge Robinson's evaluation thereof. The relevant passage in the GAO report can be found on pp. 42-43 (47-48 of 71 in the pdf) of : "[F]ederal jury administrators in eight U.S. district courts provided either exact numbers or estimates [of the number of non-citizens among people called for jury duty]. Of the eight district courts, four federal jury administrators said no one had been disqualified from jury service because they were not U.S. citizens. In the other four district courts:
a federal jury administrator in one U.S. district court estimated that 1 to 3 percent of the people out of a jury pool of 30,000 over 2 years (about 300 to 900 people) said they were not U.S. citizens; a federal jury administrator in a second U.S. district court estimated that less than 1 percent of the people out of a jury pool of 35,000 names each month (less than 350 people) said they were not U.S. citizens; a federal jury administrator in a third U.S. district court estimated that about 150 people out of a jury pool of 95,000 names over 2 years said they were not U.S. citizens [less than 0.2 percent]; and a federal jury administrator in a fourth U.S. district court estimated that annually about 5 people typically claimed non-citizenship in a jury pool of about 50,000 individuals [0.01 percent]. ... While [Mr. von Spakovsky's] lack of academic background is not fatal to his credibility ...., his clear agenda and misleading statements ... render his opinions unpersuasive."
Richard Hasen said Spakovsky had a serious credibility problem with a history of not retracting false claims.
Plaintiffs "In contrast, Plaintiffs offered Dr. Lorraine Minnite, an objective expert witness, who provided compelling testimony about Defendant's claims of noncitizen registration. Dr. Minnite ... has extensively researched and studied the incidence and effect of voter fraud in American elections. Her published research on the topic spans over a decade and includes her full-length, peer-reviewed book, The Myth of Voter Fraud, for which Dr. Minnite has received grants and professional distinctions, and numerous articles and chapters in edited volumes. ... Notably, Dr. Minnite testified that when she began researching the issue of voter fraud, ..., she began with a 'blank slate' about the conclusions she would ultimately draw from the research. ... Although she admits that noncitizen registration and voting does at times occur, Dr. Minnite testified that there is no empirical evidence to support Defendant's claims in this case that noncitizen registration and voting in Kansas are largescale problems. ... [M]any of these cases reflect isolated incidents of avoidable administrative errors ... and / or misunderstanding on the part of applicants. ... For example, 100 individuals in ELVIS [the Kansas Election Voter Information System] have birth dates in the 1800s, indicating that they are older than 118. And 400 individuals have birth dates after their date of registration, indicating they registered to vote before they were born."Robinson (2018-06-18, pp. 52-58)
Rebukes of Kobach by the Judge
Trial by ambush During the first three days of the trial, Robinson repeatedly warned Kobach about trying to introduce evidence that had not been shared with the plaintiffs during discovery. Kobach complained that the discussions "are relying on numbers that are stale". After three days, Robinson said, "We're not going to have a trial by ambush here... You're stuck with what you provided to [the plaintiffs] by the deadline".
Contempt hearing Secretary Kobach had been fined $1,000 in 2017 for violating previous court orders in this case. In the March 20, 2018, contempt hearing Judge Julie Robinson was visibly agitated when it was revealed that he had still not complied with her 2016 court orders in two specific ways:
In 2016 Judge Robinson ordered Kobach to update the state's election manual to make it clear that newly registered voters are exempt from the state's proof-of-citizenship requirements, at least until there is a different judicial ruling in this case. The manual was taken offline but had not yet been updated. Judge Robinson asked, "Isn't one of the advantages of having the manual online is that they can be modified quickly?" She later added it was a "ridiculous system" to take so long to change a few sentences in the manual. Kobach was also ordered in 2016 to instruct county election officials that the 35,000 Kansans impacted by the new law should receive the same voter instructions as other voters. This order was upheld against Kobach's appeal to the 10th Circuit Appellate Court in Denver.
In the March 2018 hearings, Kobach claimed he had given verbal instructions to that effect but acknowledged that some county election offices may not have complied with this ruling. Robinson said that Kobach had assured her in telephone hearings that he had instructed his office to order county election officials to mail the postcards to all voters covered by her order. Kobach claimed she had not put that requirement in writing. She replied, "Why would I order something in writing that you've told me is being taken care of? ... (As an officer of the court) you are under an ethical obligation to tell me the truth.'"