Judge orders Kobach to produce documents he shared with Trump

A federal magistrate judge has ordered Kansas Secretary of State Kris Kobach to hand over for review the documents that he took to a meeting with President Trump outlining a strategic plan for the Department of Homeland Security.

The U.S. District Court in Kansas City, Kan., will determine whether the documents are relevant to two federal lawsuits seeking to overturn a Kansas law that requires voters to provide proof of citizenship, such as a birth certificate or passport, when they register to vote.

Kobach, who served on the president’s transition team and was rumored to be under consideration for a role in the administration, met with Trump in November in Bedminster, N.J., and was photographed carrying a stack of papers with headings “DEPARTMENT OF HOMELAND SECURITY” and “KOBACH STRATEGIC PLAN FOR THE FIRST 365 DAYS.”

The Homeland Security documents contained a reference to voting rolls that was partially obscured by Kobach’s hand in the photograph. The photograph also showed that the plans included provisions to ask immigrants from predominantly Muslim countries about Sharia Law and to block Syrian refugees from entering the country.

Kobach has been ordered by federal magistrate Judge James O’Hara to turn over those papers for an in camera review by 5 p.m. Thursday. He has also been ordered to provide the court with a draft amendment to the National Voter Registration Act, which plaintiffs’ attorneys contend he has crafted.

Kobach and his staff did not respond to multiple requests for comment. The White House also did not comment on the possible disclosure of the documents that were shared with the president during the transition.

If the judge determines that the documents are relevant to the case, Kobach could be compelled to share them with the American Civil Liberties Union and other attorneys representing plaintiff voters.

“What these documents might show … is how they’re trying to get the Motor Voter Act amended to make it possible for them to win their case,” said Mark Johnson, a Kansas City-based attorney on the plaintiffs’ team.

A federal judge blocked Kobach from enforcing the proof of citizenship requirement for people who registered at the Department of Motor Vehicles during the 2016 election on the basis that it violated the National Voter Registration Act, also known as the Motor Voter Act, which enables people to register to vote when they get a driver’s license. A federal appeals court found that Kobach had failed to show substantial evidence that the requirement, which critics say prevents rightful voters from casting ballots, is needed to prevent noncitizen voting.

Johnson said that plaintiffs’ attorneys believe that a draft amendment has been circulated within the secretary of state’s office that could potentially change the legal standard.

Kobach has refused requests from plaintiffs’ attorneys to provide the documents as part of the lawsuit’s discovery process on the grounds that they fall beyond the scope of the case, according to court documents.

However, O’Hara said in his order that if the documents show Kobach lobbied to change federal voting law, this information would bear on whether he can demonstrate that the proof of citizenship requirement is the “least burdensome method of preventing substantial numbers of noncitizens from registering to vote” under the current legal standard.

Johnson called the judge’s private review the first step in determining whether the documents will be disclosed to plaintiffs’ attorneys. If the judge determines the documents are relevant, Kobach could still make other arguments, such as executive privilege, to try to keep them sealed, Johnson said.

Dale Ho, the director of the ACLU’s Voting Rights Project, which is representing plaintiff voters in the case, said in an e-mail that his organization awaits the court’s decision on whether the documents are relevant, which could come later this week. He said plaintiffs have a right to know Kobach’s proposed changes to the law.

“If Secretary Kobach is proposing various amendments to the motor-voter law to prevent non-citizen registration, we’re entitled to know what those proposals are,” Ho said in an e-mail. “And if he thinks that the motor-voter law needs to be amended to permit him to impose his documentation requirements, then that would be very telling – it would amount to an admission that he is not permitted to demand those documents under current law.”

The documents could have ramifications that stretch far beyond Kansas.

Kobach has served as an informal adviser to Trump on election law and has previously said that he has advised the president to investigate the issue of voter fraud. In the months since winning the presidency, Trump has repeatedly made unsupported claims that millions of people voted illegally and tipped the popular vote in Democrat Hillary Clinton’s favor, a claim that has been traced back to Kobach by Trump’s staff.

This story was originally published April 5, 2017 at 1:34 PM with the headline "Judge orders Kobach to produce documents he shared with Trump."