On January 3, 2017, President Trump claimed that there was “substantial evidence” of voter fraud in the 2016 election, enough to have denied him a popular vote victory. The substance of this now infamous claim, that millions of non-citizens committed voter fraud, was examined closely in the just-concluded trial of Kris Kobach, Kansas Secretary of State, current gubernatorial candidate, and co-chair of the Electoral “Integrity” Commission that the president established, then abruptly dissolved when it faced legal accountability.
The Kansas trial that just concluded concerned a 2013 law initiated by Kobach that required prospective voters to provide proof-of-citizenship documents. Over the course of the two-week trial, Kobach presented all available evidence of the extent of voter fraud in an effort to justify the law, which has prevented as many as 33,000 eligible Kansas residents from registering to vote.
The voter fraud thesis fell apart in truly spectacular fashion under examination, and could very well result in the overturning of the law, the denial of one witness as an “expert” in future testimony, and even a finding that Mr. Kobach be held in contempt of court. To understand how things could have possibly gone so badly for Mr. Kobach, consider some the highlights of the trial, wherein the “science” used to claim that voter fraud is rampant dissolves before our eyes, much like the Kobach Commission:
- Hans Von Spakovsky, a fellow member of the Kobach Commission, had to acknowledge early on that his research on voter fraud has not been subjected to peer review, and further acknowledged that all of his inferences about voter fraud in Kansas were based on a spreadsheet provided by Mr. Kobach.
- Regarding the frequent comment that known accounts of voter fraud are “just the tip of the iceberg,” lead counsel for plaintiffs Dale Ho asked “You don’t have any estimate of the size of the iceberg, is that right Mr. Von Spakovsky?” Von Spakovsky: “That’s correct.”
- Cross-examination also revealed that Von Spakovsky’s submitted court report contained incomplete information that made it possible for him to inflate estimates of non-citizen registration. Subsequently, plaintiffs asked Judge Julie Robinson to make a finding that Von Spakovsky is not an objective expert, having offered incomplete and misleading testimony.
- Professor Jesse Richman, who did co-author a peer-reviewed publication in Electoral Studies on non-citizen voting, took the stand and stated that “Trump and others have been misreading our research and exaggerating our results to make claims we don’t think our research supports.” (Note: Subsequent analyses of the Richman et. al. research has shown that response error accounts for nearly all of their estimated frequency of non-citizen voting. That’s how peer-review and science works.)
- During Richman’s testimony that up to 18,000 non-citizens have registered or tried to register to vote in Kansas, he acknowledged that one of the methods he used was to flag “foreign-sounding” names. When asked if he would flag the name “Carlos Murguia” Richman said yes. When informed of the fact that Carlos Murguia is a Kansas-born federal judge who sits in that courthouse, Richman said that he was not aware.
- It gets better. Pat McFerron, a “pollster” hired by Kobach to survey public opinion about the difficulty of meeting the law’s requirements and support for the law, had to acknowledge under cross-examination that claiming that the law was based on “evidence of non-citizens registering to vote” introduced bias to survey respondents.
- Further, when asked to rate the difficulty of getting necessary documents to register, respondents were told that this was required by law. When Richman was then asked if he understood the effects of social desirability bias in question wording, he could not provide an answer. Remember, this is the survey expert.
- Actual pollster and professor of political science Matthew Barreto summarized many of the other problems associated with McFerron’s methodology to Judge Robinson, including the fact that if you want to know how hard it is for unregistered people to register, you need a representative sample of people who are not already registered.
- On cross-examination, Barreto also explained to the defense that you should not use the number of registered voters from one year and the eligible population from another year if you want to accurately estimate registration rates. The judge, referring to Kobach’s estimates, explained “I can tell you if that’s the methodology, I’m giving that number absolutely no weight. That’s ridiculous.”
- In the end, Kobach could only show that his analysis of Sedgwick County revealed 18 non-citizens who had registered to vote, five of whom had voted, over a 20-year period.
The last day of the trial addressed one question, whether Mr. Kobach failed to comply with a 2016 order issued by Judge Robinson to fully register thousands of voters who had registered through the DMV but not provided proof of citizenship. When Judge Robinson discovered that Kobach had failed to ensure that these voters received the same postcard about their registration status, her frustration was clear: “I honored and trusted what you told me, Mr. Kobach. If you tell me you’ve done something, I trust that. That’s why lawyers are licensed.”
Mr. Kobach may try to keep the voter fraud myth alive through appeal, but the pseudo-scientific claims that voter fraud is rampant have been thoroughly discredited.