The debate over how to sift out illegal voters from legal ones has reached the federal appeals court level, making it possible the Supreme Court eventually will rule whether a state can demand a birth certificate to register to vote.
The case before the 10th Circuit Court of Appeals in Denver centers on a 2011 Kansas law, the Documentary Proof of Citizenship (DPOC). In June, a district court judge struck down the law, with biting criticism of analysts who contend a large number of noncitizens nationwide vote illegally, tilting close elections to Democrats. Judge Julia A. Robinson said the Kansas legislation violated federal law and the 14th Amendment guarantee to equal protection.
The law, which requires proof of U.S. citizenship to register to vote, is vigorously defended by Kansas Secretary of State Kris Kobach, a nationally known Republican locked in a tight governor’s race. His own primary battle was so close the state attorney general cited it in a brief to the 10th Circuit as a race that could be influenced by illegal votes.
A backdrop is this: the U.S. count of noncitizens is growing. A Yale study says there may be twice as many immigrants living in the U.S. illegally — 20 million — than other analyses have found. That means the population of immigrants, most of whom are over 18, has reached 30 million. The U.S. has about 245 million residents 18 and older.
Amid Tuesday’s elections for control of Congress, conservatives and liberals have starkly different views. The right say thousands break the law by voting, while liberal scholars say the count is so small as to be statistically zero.
“This case should end up at the Supreme Court if the 10th Circuit doesn’t overturn the district court opinion,” said Hans von Spakovsky, a lawyer and Heritage Foundation election law expert. “The opinion is wrong on both the law and the facts. There is no violation of federal law simply because Kansas is trying to verify the citizenship of registered voters.”
The battle will live in the 10th Circuit for now. The legal argument centers on the 1993 National Voter Registration Act, which allows people to register to vote when getting a driver’s license.
Judge Robinson sided with the American Civil Liberties Union and several voter plaintiffs, ruling in June 18 that DPOC violates the motor-voter law that requires minimal identification.
Kansas’ legal brief argues that the law doesn’t erase a state’s constitutional authority to dictate voter qualifications. One illegal vote nullifies the vote of a citizen, the state says.
“The Kansas law requiring documentary proof of citizenship to vote is not — and is not even alleged to be — invidious,” the brief states. “Instead, it is directly related to the voter qualification that requires United States citizenship. It is an even-handed regulation that requires all voters registering after its enactment, who were not registered when the law took effect, to provide documentary proof of citizenship to register to vote.”
The trial before Judge Robinson in the spring pitted a roster of right- and left-leaning researchers as expert witnesses who differ on how many immigrants living in the U.S. illegally register to vote.
Professor Jesse Richman of Old Dominion University has emerged as a pathfinder in estimating non-citizen voters by looking at surveys and actual voting.
His work is disputed by liberal scholars, some of whom circulated a letter urging political scientists to boycott his work.
Mr. Richman’s prominent detractor is Stephen Ansolabehere, a Harvard professor with a long resume of electoral studies. He spearheads the comprehensive Cooperative Congressional Election Study, a biannual questionnaire on all types of public policy issues. In one part, voters are asked if they are a citizen and if they register to vote.
It is those answers on which Mr. Richman largely relies, expanding them statistically to try to capture a national number that he believes is in the hundreds of thousands or even millions.
In Kansas, where Mr. Richman did a special study for Mr. Kobach, who acted as his own trial attorney, he estimated the number in the hundreds to perhaps 32,000.
Mr. Ansolabehere looked at his survey and concluded the number is not in the thousands but statistically zero.
Judge Robinson embraced Mr. Ansolabehere as a more qualified expert and dismissed Mr. Richman’s statistics.
“The court finds Dr. Richman’s testimony and report about the methodology and basis for concluding that a statistically significant number of noncitizens have registered to vote in Kansas, are confusing, inconsistent, and methodologically flawed,” the judge wrote.
“Most importantly, his refusal to opine as to the accuracy of any one estimate undercuts this court’s ability to determine that any one of his wildly varying estimates is correct. The extrapolations included in his report and testimony range from 0 to 32,000 noncitizen registrations.”
Back home at Old Dominion, Mr. Richman took exception. He and aligned political scientists stand by their work. They cite independent polling outside the cooperative surveys that show a large number of noncitizens telling pollsters that they register to vote.
Mr. Richman published a rebuttal blog accusing Judge Robinson of lacking knowledge on statistics and being misled by Mr. Ansolabehere.
“The lack of basic knowledge of statistics allowed the judge to be led astray by trust in the plaintiffs experts even when they were patently and obviously wrong,” Mr. Richman wrote. “For example, Professor Ansolabehere combined the analyses in my initial report inappropriately. Not only did he merely average them (not appropriate as it ignores variation in sample sizes) but he calculated the standard error of this estimate completely the wrong way.”
Of his main opponent, he said, “I demolished Dr. Ansolabehere’s calculation of a confidence interval for his ‘meta analysis’ of the various Kansas results. But the court sided with him nonetheless.”
Mr. Richman provided an example.
Sedgwick County’s voter registration history revealed that of 791 newly naturalized citizens who registered, eight had a prior voter registration history. This means they registered as noncitizens illegally.
Judge Robinson wrote that the number was statistically insignificant because they amounted to zero on a confidence level.
But Mr. Richman said that a basic calculation model disproves the judge’s conclusion. Eight of 791 registrars is a significant number that a can be cited in making broader conclusions.
“What this means is that we do have statistically significant evidence of prior registration — it is unlikely to be zero,” he wrote.
The state also showed that 129 noncitizens had tried to register and 39 were actually registered since 1999.
Again, Judge Robinson ruled the number was too insignificant to approve the proof-of-citizenship law.
Kansas’ brief appealing the decision with the 10th Circuit said Judge Robinson overreached.
“Neither Congress nor a federal court is a proper arbiter of this subjective determination,” the state said. “Rather, the states have the constitutional authority to set and enforce their eligibility restrictions without federal interference as the Kansas Legislature did here.”
The judge also ridiculed another Kobach witness, the Heritage Foundation’s Mr. von Spakovsky. He presented publicly available information on voter fraud nationwide.
“His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the court that Mr. von Spakovsky testified as an advocate and not as an objective expert witness,” the judge said.
Mr. von Spakovsky told The Washington Times, “This is one of the most biased federal judges I have ever encountered, and it was clear she had made her decision before the trial had even started and she had heard any evidence. She clearly had it in for Kansas Secretary of State Kris Kobach. Her personal animosity towards him was evident from the very beginning.”
The Kansas appeal also pointed to testimony about what it called “numerous instances of aliens registering to vote” in Seward County.
Mr. Kobach has said those numbers are the “tip of the iceberg.” He has said that the state wants to look at federal immigration records for a comparison with its voter lists.
A spokesman for the secretary of state’s office did not return calls.
Outside Kansas, there are confirmed cases of noncitizens voting illegally.
In Virginia, the Public Interest Legal Foundation, a conservative nonprofit against voter fraud, looked at six counties and two cities. It found 1,000 noncitizens registered to vote and that 200 of them had voted.
In Frederick County, Maryland, anti-fraud activists obtained a limited amount of information on voters from 2007, 2008 and 2011. They compared jury pool reports on people who were excused because they weren’t citizens with voter rosters. Nearly 180 noncitizens were registered and 63 had voted.
The 180 came from 1,400 disqualified noncitizens in those three years, a rate of 12.8 percent.
The sample was limited to jury rosters. Conservatives say the only true way to settle the debate is to compare rosters with immigration status records in the Department of Homeland Security.
Mr. Kobach tried to achieve that goal by heading President Trump’s voter fraud commission. But Mr. Trump disbanded the panel amid a flurry of lawsuits.