That Which Kris Kobach Is About To Wreak Upon Our Courts

On May 11, 2017, President Trump signed Executive Order No. 13799, ¹ establishing the Presidential Advisory Commission on Election Integrity. In theory, this commission exists to review the extent of things like people registered to vote who do not have the actual legal right to exercise the franchise, people who vote in ways contrary to law (such as twice in the same election), and tampering with the accurate gathering and reporting of election results. In the popular media, these things have been described with the shorthand “voter fraud.”

The chair of the commission is Vice President Mike Pence, but the real motive force on the commission is its vice chair, Kris Kobach, ² whose day job is Secretary of State of Kansas and who is also a prominent candidate in the race to become the next Governor of Kansas next year. In those instances when Secretary Kobach attempts to put a nonpartisan gloss of fairness and integrity on how pursuit of “voter fraud” can be used to trim the size of the electorate in ways that benefit Republicans, he does not, in my opinion, do a particularly convincing job of it.

With that said, yes, purges of deceased, moved, or otherwise ineligible voters from voter rolls is something that all state election officials must do periodically. An election official acting in good faith will receive a registration form from a voter who is already on the rolls and remove the old registration in place of the new one. They scour obituaries and death certificates to remove dead people from the list of eligible voters.

The United States Department of Justice has been using substantial effort to investigate allegations voter fraud for fifteen years, since near the beginning of the George W. Bush Administration, and found very little evidence of it, anywhere. Nevertheless, it would appear that when the Kobach Commission meets next Wednesday (July 26, 2017) its principal recommendation will be the systematic purge of registered voters from the rolls of the several states. This despite the fact that its own attempts to gather voter registration information in an effort to continue finding evidence of this functionally non-existent problem have been rebuffed by nearly all of the election officials of the several states (whether they are Republicans or Democrats or nonpartisan officials).

The thing of it is, while the Kobach Commission has been mostly blown off and limited to publicly-available information on its own authority, the Department of Justice has had much better results with its request made on the same day as Kobach’s, purportedly looking to montior enforcement of the National Voter Registration Act. DoJ has no doubt had better results than the Kobach Commission precisely because there is actual legal authority for DoJ to enforce this law. To date, the extent of DoJ’s success in gathering this information, and the extent to which DoJ has been coordinating its activities with the Kobach Commission, is unclear.

On its own, neither DoJ nor the Kobach Commission can do very much about who is registered to vote in a particular state. But they can levy great political pressure for a state election official to conduct a purge of the rolls. They can portray the inevitable irregularities and dozens of apparent duplicates to appear to be the result of systematic voter fraud, confident that most people hearing this news and their spin on the facts will not dig down deeply enough to demonstrate that the portrayal is inaccurate. After all, refuting bullshit already released into the wild takes an exponentially greater amount of effort than was spent initially generating it:

So what’s going to come out of these federal activities will be advice. DoJ might be able to go to court to request some purges, but for the most part DoJ has historically concentrated its efforts at the systemic level, addressing whether or not state election officials had created and implemented proper procedures for policing against voter fraud (which do include biannual purges). The actual purges of voters from the rolls will be done (or not) on a state-by-state basis.

This is where the courts are going to get involved. I predict that the winning strategy for challenging these voter purges at the systemic level will be based on the Fourteenth Amendment’s due process clause.

Voting, obviously, is a fundamental right of a U.S. citizen. Indeed, the ability to exercise the franchise is pretty much the definition of being a citizen. A state cannot take away someone’s fundamental right without affording that person due process:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
–United States Constitution, Amend. XIV, sec. 1.

Regular readers of these pages may recall a recent, lively, and fascinating discussion about the most proper way to interpret this law, but it is pretty clear that whether or not the active caselaw is congruent with whatever theory one prefers, the active caselaw prescribes a framework of analysis that is used by a court to determine whether or not a state has complied with this provision of the Constitution in a given situation.

So the fallout from the Kobach Commission will be whether, if, and when a person who previously was permitted to vote is purged from the voter rolls. One would hope that this is discovered before an election, but probably won’t be. That would-be voter will then have to bring a claim against her own state election official ³ to get back on the rolls.

This calls to mind the case of O’Brien v. Skinner (1974) 414 U.S. 524. In O’Brien, six dozen residents of Monroe County, New York previously had been registered to vote. However, these folks were residents of the Monroe County jail. Some of them were awaiting trial, could not post bail, and had not yet been convicted of anything. Others were serving sentences for various misdemeanors.

Since these prisoners were not felons but rather misdemeanants (and some of them not even convicted yet), had they been at liberty to appear at their precincts, they would have been permitted to vote. The 1972 general election rolled around, and they applied for absentee ballots. The Monroe County registrar refused to give them the absentee ballots, saying that no provision of the New York law authorized absentee ballots for incarcerated people. New York’s highest state court, the Court of Appeals, sided with the elections officials and wrote in its opinion that the physical inability to vote was an appurtenance of confinement.

On appeal, the U.S. Supreme Court noted that if someone was serving a misdemeanor sentence in a jail outside of their own county, there was a procedure for them to get an absentee ballot and vote while in jail. But if you were in jail in your home county, there was no such provision. As a practical matter, then, they could not vote because they had no way of filling out a ballot. What’s interesting about the reasoning the Supreme Court used to reverse this situation was that under its own doctrines, it could not disturb the New York Court of Appeals’ interpretation of state law, so it moved to the Federal Constitution and found an equal protection violation based on the “wholly arbitrary” refusal to permit absentee ballots for home-county detainees and misdemeanants.

In a concurring opinion, Justice Thurgood Marshall explicitly applied the strict scrutiny test, something which the majority opinion by Chief Justice Burger did not disagree with, but glossed over. So the Marshall concurrence gives us the best insight into the test here:

It is well settled that ‘if a challenged statute grants the right to vote to some citizens and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. … New York’s exclusion of pretrial detainees and convicted misdemeanants confined in the county of their residence cannot withstand analysis. The only basis even suggested for this discrimination is the possibility recognized … that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates. Though protection of the integrity of the ballot box is surely a legitimate state concern, I frankly find something a bit disturbing about this approach to the problem. It is hard to conceive how the State can possibly justify denying any person his right to vote on the ground that his vote might afford a state official the opportunity to abuse his position of authority. If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote. There are surely less burdensome means to protect inmate voters against attempts to influence their votes… . O’Brien, supra, at 533 (Marshall, J., concurring; internal citations and quotation marks omitted).

How odd! Voting is a fundamental right, so strict scrutiny applies and, unsurprisingly, the state statutory and enactment regime does not withstand analysis. But from there, Justice Marshall seems to ratchet back down to the rational basis standard, suggesting that denying absentee ballots to local prisoners but granting them to prisoners from other counties does not promote a legitimate state concern. A true fundamental rights analysis looks to see whether the state’s objective is “compelling,” not merely “legitimate.”

So that leaves us with an interesting question — is protecting the integrity of the ballot box a “compelling state interest” or is it merely “legitimate”? One wants to say that this is a very, very important thing to do — it is the very nature of our Republic; fair and democratic gathering and counting of votes is to the body politic what cellular mitosis is to the body of a human being. So whatever scheme of voter purging a state takes in response to the Kobach Commission’s findings, it’s going to be analyzed to see whether or not it is narrowly tailored to purge the fewest number of voters possible while still ensuring the integrity of elections. E.g., Shaw v. Hunt (1996) 517 U.S. 899, 908.

Which becomes ridiculous because the purportedly compelling problem that is supposed to be solved by a voter roll purge is, on the basis of two decades’ worth of accumulated evidence, so miniscule as to be negligible. I submit that a problem as trivial as voter fraud actually is in practice cannot be a compelling state interest at all, not without a showing that there are actually a significant number of fake votes being regularly cast, potentially influencing the outcome of an election. However, I concede that I am aware of no case that defines a “compelling state interest” as one that is actually manifest: other things that are potential threats, like defense against an invasion that never happens, have been found to be compelling state interests based on the magnitude of the threat. Korematsu v. United States (1944) 323 U.S. 214, 219.

But there’s another thing at play here, which is the procedural side of the Fourteenth Amendment’s due process clause. Concerning an affidavit-driven replevin procedure ⁴ in Florida and Pennsylvania, the Supreme Court held:

Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. … It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner. … If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. ‘This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone. Fuentes v. Shevin (1972) 407 U.S. 67, 81-82 (internal citations and quotation marks removed).

Taking this understanding of due process, can the state strike someone from the franchise, to satisfy the demands of the Kobach Commission, without first contacting the voters to be purged and affording them an opportunity to be heard regarding whether or not they should be purged? A voter by voter process sounds elaborate and expensive — especially if we’re talking about giving notice to dead people.

Given that the most likely-seeming scenario for this to come to light would be someone showing up to vote and being turned away, what would the remedy be? A post hoc ballot? Or just re-registation for future elections? We’ve never had such a thing before. Let us pray that such a suit does not arise out of an election in a very close race.

There’s a whole mess of questions here, and in a press-the-partisan-advantage rush to get these purges done, no one is stopping to think about the answers. And Democratic opponents of this effort are obviously eager to do battle. The Kobach Commission could, potentially, let slip a torrent of voting rights litigation unseen for at least two generations.

Image by DonkeyHotey

1. His thirty-fifth out of forty executive orders issued to date since Trump assumed office; by comparison, his predecessor Barack Obama had issued a total of 25 executive orders by this same point in his Presidency.
2. Readers: if you click on no other link in this post, this is the one to check out.
3. Likely a Secretary of State, although the title is different than that in a minority of states.
4. Replevin is a court order that the sheriff go take something in your possession, and give it over to me. Under the laws challenged in the quoted case, all I would have had to do was go to the county sheriff, sign an affidavit that that car you’re driving around really belongs to me, and convince the sheriff to take on the case. Then, he’d send some deputies around to your place and take the keys from you and tow the car over to me. If you wanted to say it was your car, you could then sue me and a court would sort it out. I don’t know about you, but I do see a non-trivial potential for abuse here.