KANSAS CITY, Kan. — The ACLU’s top voting rights lawyer faced down one of President Donald Trump’s voter fraud commissioners in court on Friday, getting him to concede that he had shaky evidence of significant voter fraud in Kansas.
The exchange came on the fourth day of a trial over a Kansas law that requires residents to prove they are U.S. citizens when they register to vote. Several residents who were not allowed to vote in the 2016 election are being represented by the American Civil Liberties Union in the suit against Kansas Secretary of State Kris Kobach (R).
Dale Ho, director of the ACLU’s voting rights project, questioned Hans von Spakovsky, a former Justice Department official and member of the Presidential Advisory Commission on Election Integrity, who is one of the most prominent people arguing that noncitizen voter registration is a substantial issue. Several studies and investigations have shown it is not.
The back-and-forth between the two men in U.S. District Court ostensibly was about Kansas law (von Spakovsky is serving as an expert witness for Kobach). But Ho’s cross-examination had deeper significance in the national debate over voting restrictions because he was able to show that allegations of widespread voter fraud can often be based on incomplete information derived using unscientific methods.
Von Spakovsky has said that voter fraud is a serious problem both in Kansas and nationally. Questioned by Kobach in court on Friday, he pointed to a handful of cases in Kansas and hundreds of allegations of noncitizens on the voter rolls that date back to the 1980s.
But Ho noted that von Spakovsky had donated to defendant Kobach’s campaign in 2010 and had voiced support for the idea that being born in the United States doesn’t guarantee U.S. citizenship. Ho intended to show that von Spakovsky had formed an opinion about the Kansas law before he knew much about it and had written an expert report based on unreliable information.
Von Spakovsky admitted that he was not aware of a single election in which noncitizen votes determined the outcome. He also conceded that his research into voter fraud had not been subjected to the same kind of rigorous peer review that academic work would face.
Ho noted that von Spakovsky’s expert report in the case contained incomplete information that allowed him to inflate the likelihood of noncitizens getting on the rolls. In one example, von Spakovsky pointed to a NBC News story that said 100 registered voters had returned jury duty questionnaires indicating they were not U.S. citizens. Von Spakovsky failed to note in his report, however, that NBC followed up with those voters and that about a third actually were citizens.
Under Ho’s questioning, von Spakovsky also admitted that his entire understanding of voter fraud in Kansas was based on a spreadsheet prepared by Kobach’s office of about 30 noncitizens who attempted to get on the voter rolls in one county in the state over the course of 18 years. Pressed if he knew the circumstances behind any of the cases, such as if any of reports were caused by an administrative error or confusion, von Spakovsky said he did not.
Von Spakovsky’s testimony is crucial to Kobach’s defense of the Kansas law. Kobach, who was also on the voter fraud commission with von Spakovsky, has to show that noncitizens getting on the voter rolls is a substantial problem and that nothing short of asking people to provide proof of citizenship can prevent it.
Ho had not spoken much during the trial since the opening arguments on Tuesday, but it was clear he had been waiting for an opportunity to question von Spakovsky. As he questioned him, Ho was icy. His questions were short and rapid, and he often raised his voice as he asked them, while von Spakovsky mostly answered quietly. At one point he turned his back to von Spakovsky. Kobach objected throughout that Ho was harassing the witness, and U.S. District Judge Julie Robinson admonished Ho to dial down his theatrics.
Robinson also questioned von Spakovsky’s understanding of voter fraud. In his Friday testimony, von Spakovsky said that any ineligible voter who cast a ballot was committing voter fraud because they were diluting the vote of a legitimate citizen. Robinson wanted to know if he believed it would also be voter fraud if thousands of legitimate voters were blocked from casting ballots because of a voting restriction (the ACLU estimates the Kansas law affected more than 35,000 people). Von Spakovsky said that he didn’t consider it to be fraud because every voter had an opportunity to obtain the necessary documents to register.
Pressed later by Ho, he was unable to name any voting restriction in the United States that he believed to be a burden to voters.