U.S. cit­i­zen­ship voter law lands at fed­eral ap­peals court

The Washington Times Weekly - - Politics - BY ROWAN SCAR­BOR­OUGH

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 the 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 ar­gu­ment­cen­ters 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 in­June 18that 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 even­handed 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 left­lean­ing 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.


Kansas Sec­re­tary of State Kris Kobach has stri­dently de­fended the Doc­u­ment Proof of Cit­i­zen­ship law.

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