A federal judge ordered Kansas' top elections official to turn over a document with proposed changes to federal voting rights laws that he took to a meeting with President Donald Trump in a scathing ruling Monday that questioned Kansas Secretary of State Kris Kobach's candor and credibility.
After privately examining the documents, U.S. Magistrate James O'Hara ruled that parts of the documents sought from Kobach are "unquestionably relevant" to a lawsuit challenging a state law requiring voters provide proof of their U.S. citizenship when registering. O'Hara's ruling orders Kobach to turn the documents over to the plaintiffs by Wednesday.
The magistrate's directive also instructed Kobach to produce a related internal document about proposed changes to the National Voter Registration Act.
"If you are being sued under a statute and then you go to the federal government and say the statute needs to be changed, that suggests you may have a problem complying with the statute the way it is written — that could conceivably help us prove our case," said Doug Bonney, legal director for the American Civil Liberties Union of Kansas.
Kobach had no comment and was reviewing the order, said his spokeswoman, Desiree Taliaferro.
Federal law only requires a "minimum amount of information" to determine whether someone is qualified to register to vote, and one of the issues in the case is whether a substantial number of noncitizens registered to vote.
O'Hara chastised Kobach for his statements that no document existed showing he had sought to change the means of assessing voter qualification by amending the federal law — calling his statements "word-play meant to present a materially inaccurate picture of the documents."
Kobach had "a duty of candor and a duty not to assert frivolous arguments," the judge wrote, adding any lawyer who takes an unsupportable position in such a simple matter hurts his credibility when the court considers arguments on more complex and nuanced matters.
The judge said he would leave it to the plaintiffs to decide whether to seek sanctions against Kobach.
Bonney said the ACLU was considering asking for such sanctions but would wait to see the documents before making a decision to do so.
"The court calls out the secretary in this case for being less than candid," Bonney said, adding the court's comments about Kobach in the order are "very rarely seen."
O'Hara's order requires Kobach to turn over the information to the attorneys challenging the state's proof-of-citizenship requirement as part of the evidence gathering process, and it is uncertain if any of those documents will eventually become public. The ruling allows him to redact parts of the document that did not involve the voting rights issues.
The judge also rejected Kobach's arguments that the document he presented to then President-elect Trump as a member of the transition team was protected by executive privilege, noting no court has extended such privilege to communications made before a president takes office.