Ari Berman, New York Times, June 13, 2017
Kris Kobach likes to bill himself as “the A.C.L.U.’s worst nightmare.” The Kansas secretary of state, who was a champion debater in high school, speaks quickly for a rural Midwesterner, with the confidence of a man who holds degrees from Harvard, Oxford and Yale Law School, and until January he hosted his own local radio show, which used that line about the A.C.L.U. to introduce each episode. On March 3 he strode into the Robert J. Dole Federal Courthouse in Kansas City, Kan., to face the latest lawsuit filed against him by the civil-liberties organization. In an unusual arrangement for a secretary of state, Kobach, 51, personally argues all of his cases. He seems to see it as a perk of the job — and a mission.
The A.C.L.U. has filed four suits against Kobach since he was elected in 2010. All of them challenge some aspect of his signature piece of legislation, the Secure and Fair Elections Act, or SAFE Act, a 2011 state law that requires people to show a birth certificate, passport or naturalization papers to register to vote. Kobach has long argued that such a law is necessary to prevent noncitizens from registering to vote, a phenomenon that he has repeatedly claimed is both pervasive and a threat to democracy. The A.C.L.U. has countered that the real purpose of the law is not to prevent fraud but to stop the existing electorate from expanding and shifting demographically. The same principle informed the “grandfather clauses” of the Jim Crow era, which exempted most white voters from literacy tests and poll taxes designed to disenfranchise black voters. Even a seemingly small impediment to registration, like a new ID requirement, favors the status quo, and in Kansas, and indeed nationally, the status quo favors the Republican Party.
The Voting Rights Act of 1965 outlawed tactics that prevented blacks, Hispanics and other minority groups from voting. But for decades, Republicans have fought to circumvent the law by describing their proposed restrictions — requiring specific forms of identification to vote, preventing early voting, purging voting rolls — as colorblind security measures.
The A.C.L.U. has repeatedly argued that the Kansas law discriminated against minorities, young people and low-income people, all of whom are more likely to be registering for the first time and less likely to have immediate access to citizenship papers, because they can’t afford them or were more transient and don’t have copies of their documents at hand. No state has been as aggressive as Kansas in restricting ballot access, and no elected official has been as dogged as Kobach.
Standing before Judge Julie Robinson in Kansas City, Orion Danjuma, one of the A.C.L.U. lawyers, noted that Kansas’s proof-of-citizenship law applied only to people registering or updating their registrations after 2013. “Tens of thousands of Kansans have already been prevented from registering to vote because of this requirement,” Danjuma said — one in seven new registrants. Close to half of those were under 30.
Today the A.C.L.U. was arguing that a new program called Birth Link — which crosschecked flagged names on the list of voter registrations with Kansas state birth records, conveniently automating the proof-of-citizenship process — discriminated against Kansas residents who were born outside the state. “The Birth Link policy is, in our view, a constitutional smoking gun,” Danjuma said. “There’s nothing wrong at all with the fact that the Kansas Department of Vital Records records people who were born in the state. The problem is when the state starts to distribute benefits — like the right to vote — based on whether or not you’re in that database.”
For Kobach, the question of citizenship, and who has a rightful claim to it, is at the heart of his lawsuits and legislation. Years before Donald Trump began talking about building a wall, the fate of America’s white majority was a matter of considerable interest to Kobach, who once agreed with a caller to his radio show that a rise in Latino immigration could lead to the “ethnic cleansing” of whites and has written scores of laws across the country to crack down on undocumented immigration. He told The Associated Press in May that he met Trump through his son Donald Trump Jr., with whom he has a mutual friend. Kobach has since become close to the White House inner circle, including the president and his chief strategist, Steve Bannon. Two weeks after the election, Kobach met with Trump at his golf club in Bedminster, N.J., where the president-elect was auditioning potential members of his cabinet before the press, and was photographed holding a white paper outlining a “Kobach Strategic Plan for First 365 Days.” Though partly obscured, what could be read of the document was a bullet-pointed wish-list of right-wing policies that included “extreme vetting” and tracking of “all aliens from high-risk areas,” reducing “intake of Syrian refugees to zero,” deporting a “record number of criminal aliens in the first year” and the “rapid build” of a wall along the U.S.-Mexico border.
Kobach did not go to work in the Trump administration: He said in May that he had turned down two offered positions, one in the White House and the other at the Department of Homeland Security, although The Wall Street Journal reported in January that John Kelly, the secretary of the Department of Homeland Security, had balked at making Kobach his deputy. But on May 11 Trump named him vice chairman of a new Presidential Advisory Commission on Election Integrity to be led by Vice President Mike Pence. The commission will examine “improper voter registrations and improper voting” — issues that Kobach, with his high-profile efforts in Kansas, almost single-handedly put on the Trump administration’s radar.
Kobach’s plans represent a radical reordering of American priorities. They would help preserve Republican majorities. But they could also reduce the size and influence of the country’s nonwhite population. For years, Republicans have used racially coded appeals to white voters as a means to win elections. Kobach has inverted the priorities, using elections, and advocating voting restrictions that make it easier for Republicans to win them, as the vehicle for implementing policies that protect the interests and aims of a shrinking white majority. This has made him one of the leading intellectual architects of a new nativist movement that is rapidly gaining influence not just in the United States but across the globe.
On June 8, Kobach announced his candidacy in the 2018 Kansas gubernatorial race, telling a room full of supporters in the Kansas City suburb of Lenexa that he had “the honor of personally advising President Trump, both before the election and after the election, on how to reduce illegal immigration. And is he doing a good job?” The crowd cheered. If Kobach wins, he could be positioned to run for president as the legal mind who can deliver the promise of Trumpism without the baggage of Trump himself.
At the A.C.L.U. hearing, Kobach argued that his restrictive measures were justified by the high stakes. “We are preventing noncitizens from voting in elections,” he said. “And when a few noncitizens vote, those can swing a close election.” Afterward, sipping a Diet Coke at the restaurant in the Hilton Garden Inn across the street from the courthouse, Kobach told me he wants his work in Kansas to become a model for the rest of the country. Other state and federal laws would follow, if only he could create “the absolute best legal framework,” he said. “That’s what I set out to do.”
No one better represents the kind of America that Kobach is promoting than Kobach himself. He is tall and broad-shouldered and looks like John Wayne. He was born in Wisconsin and moved to Topeka, Kan., when he was 7. In high school, he mowed lawns and worked at his father’s Buick dealership. After becoming class president, he went on to Harvard.
It was at Harvard that Kobach became a protégé of Prof. Samuel Huntington, then the director of Harvard’s Center for International Affairs. Huntington had worked in the National Security Council under President Jimmy Carter, but he is now best known for his dire warnings about an inevitable “clash of civilizations” between various regional and religious groups, including Islam and the West. Under Huntington’s guidance, Kobach wrote his senior thesis on how the movement to divest from South Africa was misguided because international businesses were already leading the way against apartheid. (Huntington, who had advised South Africa’s government, argued that a transition away from white minority rule might require a period of “enlightened despotism.”)
Kobach says Huntington “touched on a lot of themes I’ve worked on with immigration law,” but he distances himself from some of Huntington’s more radical ideas. Two of those ideas, however, have played an important role in the direction of the larger reactionary movement that Kobach leads.
The first was that broad-based participation in a democracy was not always a good thing. “Some of the problems of governance in the United States today stem from an excess of democracy,” Huntington wrote in a 1975 report called “The Crisis of Democracy,” and there are “potentially desirable limits to the indefinite extension of political democracy.”
Huntington warned of the dangers of expanding the franchise to previously disenfranchised and marginalized groups of voters. “In itself, this marginality on the part of some groups is inherently undemocratic, but it has also been one of the factors which has enabled democracy to function effectively,” Huntington wrote. “Marginal social groups, as in the case of the blacks, are now becoming full participants in the political system. Yet the danger of overloading the political system with demands which extend its functions and undermine its authority still remains.”
The second idea was that the changing demographics of the United States would lead to a culture war between Anglo-Protestants and newer immigrant groups, particularly Latinos. “While Muslims pose the immediate problem to Europe,” Huntington wrote in his 1996 book “The Clash of Civilizations,” “Mexicans pose the problem for the United States.”
He expanded on this view in his 2004 book “Who Are We? The Challenges to America’s National Identity,” denouncing the “Hispanization” of the United States and claiming that many Mexican-American immigrants “do not appear to identify primarily with the United States” and were “often contemptuous of American culture.”
Huntington’s central thesis was that the country’s “Anglo-Protestant culture” was under siege: He warned that “the large and continuing influx of Hispanics threatens the pre-eminence of white Anglo-Protestant culture and the place of English as the only national language. White nativist movements are a possible and plausible response to these trends.” Five years later, in an essay in Foreign Policy, he amplified the point: “Demographically, socially and culturally, the reconquista (reconquest) of the Southwest United States by Mexican immigrants is well underway.”
Kobach enrolled at Yale Law School in 1992. In his final year, California voters approved Prop. 187, a sweeping law, also known as the Save Our State initiative, that for the first time restricted public benefits, including education and health care, for undocumented immigrants. The federal courts ultimately blocked the law, on the grounds that California was overstepping federal immigration authority, and it is now largely remembered as a political debacle. California had been predominately Republican for decades, but a backlash from the state’s growing Hispanic population pushed Gov. Pete Wilson out of office and flipped the state from more-or-less red to permanently blue.
Kobach says that it was not Huntington so much as Prop. 187 that sparked his interest in immigration law. “It was not popular at Yale Law School, but I defended it,” he said. “It just struck me as obvious that a state has the right to restrict its welfare benefits only to those people who are U.S. citizens or are visiting the state legally.”
In 2001, Kobach took a leave of absence from his job as a law professor at the University of Missouri-Kansas City to become a White House fellow in the George W. Bush administration. He was assigned to the Justice Department a week before Sept. 11. While much of the national-security establishment regarded the attacks as an intelligence failure, Kobach viewed them as a failure of border security. Mark Johnson, a partner at Dentons law firm in Kansas City who has known Kobach for 25 years, says, “It radicalized him on the issue of immigration.”
Kobach grew close to Attorney General John Ashcroft, and when the fellowship ended a year later, he stayed on as his chief adviser on immigration and border-security issues. One of his first tasks was to implement the National Security Entry-Exit Registration System, or Nseers, a program he designed that required all male visa holders over the age of 16 from 24 predominantly Muslim countries (and North Korea) to be fingerprinted, photographed and interviewed by immigration authorities. The program was controversial inside and outside the government.
The Obama administration halted the program in 2011. Nseers did not result in a single known conviction on terrorism charges, but it did result in deportation proceedings for nearly 14,000 Muslim men.
In 2003, Kobach returned to Kansas to challenge Dennis Moore, a Democrat, for his seat in Congress. The following year, he also represented students in a lawsuit sponsored by the Federation for American Immigration Reform, or FAIR, a far-right advocacy group, in a lawsuit challenging a provision that allowed public universities to charge undocumented residents of Kansas in-state tuition rates. (The suit was unsuccessful.)
Kobach lost the race by 11 points but earned national headlines for his outspoken nativism. “I want to just applaud you for your courage,” Bill O’Reilly told him that year, during Kobach’s first of many appearances on O’Reilly’s show. “You’re the first former administration official to come up and really tell the folks what’s going on.” Kobach became counsel to the Immigration Reform Law Institute, the legal arm of FAIR, and began drafting a series of ordinances for cities around the country, preventing landlords from knowingly renting to undocumented immigrants or employers from hiring them. Most of the laws were defeated in court because the federal government had the exclusive power to enforce immigration laws.
In 2006, Kobach received a call from the Maricopa County Attorney’s office in Phoenix. Andrew Thomas, the county attorney, wanted Kobach to defend his interpretation of the state’s “coyote law,” which in his view should allow undocumented immigrants to be charged as co-conspirators when they were caught illegally crossing the border. Kobach agreed.
Even as he remained active in his own state’s politics, serving as chairman of the Kansas Republican Party from 2007 to 2009, Kobach began spending more time in Arizona. He struck up a friendship with Joe Arpaio, the Maricopa County sheriff, who dubbed himself “America’s toughest sheriff.”
At the Justice Department, Kobach had promoted an effort to deputize local police departments with immigration-enforcement authority from Immigration and Customs Enforcement. In 2007, Arpaio received such a deputization, and his office within two years had arrested 33,000 undocumented immigrants, many of them in highly publicized “crime suppression” sweeps.
In 2009, after Barack Obama took office, the Department of Homeland Security rescinded Arpaio’s immigration-enforcement powers. That same year, the Justice Department began an investigation into Arpaio’s “discriminatory police practices and unconstitutional searches and seizures.” Not long after that, Arpaio hired Kobach to train all of his deputies on how to comply with federal immigration law. “I really want to applaud what Maricopa County is doing,” Kobach said in a video for the trainings, calling the county a model for the nation. Despite the federal government’s jurisdiction over immigration, Kobach told Arpaio’s deputies they had “inherent authority” to enforce immigration laws, based on a 2002 memo Kobach had requested from the Justice Department. He listed several of the dozens of federal crimes undocumented immigrants could be arrested for, including “failure to carry an alien registration card” and “failure to notify the federal government of a change of address.”
Kobach also helped State Senator Russell Pearce, the foremost opponent of undocumented immigration in the State Legislature, draft SB 1070, a 2010 bill that required the Arizona police to ask for citizenship papers from anyone they had “reasonable suspicion” of being in the state illegally.
Kobach counseled Pearce on how to make the bill even more sweeping. In an email to Pearce before the law’s final passage, Kobach said that a person’s violation of “any county or municipal ordinance” could lead to an immigration query: “This will allow police to use violations of property codes (i.e., cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries as well.” After filing a lawsuit against SB 1070, the A.C.L.U. referred to it on its website as the Show Me Your Papers law.
Arizona became the first state to act on another of Kobach’s theories: attrition through enforcement. Make life miserable enough for immigrants, and they will leave of their own volition.
The Arizona experiment didn’t end well for the state or its principal actors. The interpretation of the “coyote law” that Kobach came to Arizona to defend was blocked in 2013. The Supreme Court struck down three of four sections of SB 1070 and narrowed enforcement of the “show me your papers” provision. The Justice Department sued Arpaio in 2012, and the following year a federal court ruled that his immigration stops violated federal law, including the Civil Rights Act of 1964, for discriminating against Latinos. Arpaio was ultimately charged with criminal contempt of court; he failed to be re-elected in November 2016. Andrew Thomas, the county attorney, was disbarred by the Arizona Supreme Court in 2012 for what it called an “unholy collaboration” with Arpaio.
But Kobach continued to thrive. In 2010, the same year SB 1070 passed in Arizona, he ran for secretary of state in Kansas. “My hope is that Kansas will be to stopping election fraud what Arizona is to stopping illegal immigration,” he told The Kansas City Star.
In 2005, Kansas joined with three other Midwestern states in a regional compact called the Interstate Voter Registration Crosscheck Program. The program compared state records to find people registered to vote in more than one place. On taking office, Kobach, recognizing the program’s potential, championed it to election officials around the country, rapidly expanding its reach. The program now includes more than 30 states.
Kobach’s chilling narrative of deceitful foreigners subverting democracy has served him well. Making people believe that voter fraud is rampant builds public support for policies that restrict access to the ballot. And claims of illegal voting by noncitizens help justify Kobach’s hard-line anti-immigration agenda. This has given Kobach a powerful political constituency, not least of which is the president himself. The story Kobach tells about voter fraud is what persuaded Trump to create a presidential commission on “election integrity” and name Kobach its vice chairman. “He’s stated his own view publicly, which is consistent with what he’s told me privately,” Kobach says of Trump’s views on voter fraud. “He believes that it’s a significant problem.”
The Trump commission marks a major step forward in Kobach’s efforts to nationalize his restrictions on voting. He’ll have a presidential bully pulpit and access to government resources that weren’t previously available, such as a nationwide database that includes noncitizens that could be run against state voter rolls to generate new allegations. But that Systematic Alien Verification for Entitlements database does not automatically reveal the status of immigrants who become U.S. citizens, which means thousands of noncitizens who are subsequently naturalized could mistakenly be tagged as illegal voters. The commission will also make policy recommendations at the federal and state level, which could include support for suppressive policies like strict voter-ID laws and voter-rolls purges.
Kobach wants proof-of-citizenship laws to be adopted in every state.
In 2006, when he was still a law professor, Kobach spoke at a candlelight gathering to oppose federal immigration reform, billed as a Vigil to Save the American Worker, in Kansas City. The event was sparsely attended, but Kobach spoke pessimistically to those who had come with passion. He cited a line often attributed to Winston Churchill. “He said that his definition of a fanatic is ‘someone who can’t change his mind and won’t change the subject,’” Kobach said, standing in the candlelight. “And friends, if that’s what a fanatic is, then I guess I’m a fanatic. Because, when it comes to restoring the rule of law, I can’t change my mind and I won’t change the subject.”