In 2011 Kris Kobach, the Kansas Secretary of State, spearheaded adoption of the Secure and Fair Elections Act, requiring prospective voters registering at DMV offices to produce specified official or original identification to be entered onto the voting rolls. In 2014 several Kansans represented by the ACLU brought suit against the state and Kobach, alleging that the statute disenfranchised voters indiscriminately. The Secure and Fair Elections Act was not supported by any tangible evidence of voter fraud in Kansas.
In September 2014, however, Professor Jesse Richman and a colleague at Old Dominion University in Norfolk, Virginia, authored a statistical and probability answer in the affirmative to the title of a study—Do Non-Citizens Vote in U.S. Elections?—in an academic journal. The abstract for the article contains some carefully parsed syntax to describe their findings:
…some non-citizens participate in U.S. elections, and that this participation has been large enough to change meaningful elections outcomes, including Electoral College votes. … Non-citizens’ votes likely gave Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass healthcare reform. [emphasis added]
These findings are simultaneously stunning and astonishing, if proven. To excite readers, the article further offered:
Since the adult non-citizen population of the United States was roughly 19.4 million…, the number of non-citizen voters…could range from just over 38,000 at the very minimum to 2.8 million at the maximum. [emphasis added]
If these probabilities and conclusions could be demonstrated, the Kobach and Richman duo would thumb their noses at adversaries and be proclaimed heroic by protagonists.
But they cannot be demonstrated! The first caution is to emphasize the language of the findings, which morphs non-citizen “participation” [enrollment] in the electoral system to actual voting—two very different and discrete activities. A second is the conclusion that non-citizen voting, not mere participation, had a substantial effect upon election results. Richman’s theory was based upon data from the 2008 and 2010 election cycles and relied upon very small samplings of participants. Later attempts to reproduce the Richman results generated contrary findings and opposite conclusions concerning the probability of non-citizen voting. To make matters worse, Richman offered no clarification about participation, voting, or illegal immigrants, allowing observers to conclude the connection.
In response to a deluge of criticism, including from fellow academics, Richman began to issue statements to soften and modify his study’s conclusions, while continuing to defend his methodology. In January 2017 in an interview with Wired, the researcher affirmed his methodology while asserting that Trump and others had misread the research and exaggerated the results “…to make claims we don’t think our research supports”, adding that “there’s not much I can do about that aside from set the record straight.” That same month, Richman produced a report as an expert trial witness for Kobach, using his methodology on Kansas data to conclude that as many as 18,000 possible non-citizens voted. All that remained was to extract Richman’s expert testimony at trial in Kansas to defeat the challenge to the 2011 law. Neither Kobach nor Richman offered any clarification of terms about participation in the electoral process, voting, or illegal immigrants. The trial commenced in March of 2018.
On the stand, Richman was queried about aspects of his study on Kansas data, whereupon he acknowledged that some information was selected on the basis of “foreign sounding names.” Having noted that two respondents with the name Lopez were coded as foreign yet three named Lopez were not, the ACLU attorney inquired whether the name Carlos Murguia would have been coded as a non-citizen voter. Replying in the affirmative, no response was recorded when the attorney revealed that Carlos Murguia was the name of a federal judge whose courtroom was in the same building. [For a fascinating day-by-day report on the trial, see www.talkingpointsmemo.com/kobach-voting -rights-trial/live-update.]
The final ruling in the case has not yet been issued, but it is valuable to note that Kobach was held in contempt by the presiding federal judge in April 2018 for failing to follow her order to restore thousands of Kansans to the rolls whose voter registrations were being held up. Sadly, Kobach and Richman followed an improbable dream, failed to beat back the windmills, and only caused damage to a vital democratic process.
The burlesque adventures of Don Quixote and his squire Sancho Panza produced the immortal phrase about “tilting at windmills.” Quixote, seeking to restore chivalry, had become haplessly enamored by his glorious quest, mistaking a field of windmills for dragons to joust or tilt as one challenge to right the wrongs of the world. Panza, with a desultory existence as a poor farmer, agrees to accompany the noble Quixote through thick and thin.
In contrast, however, Quixote and Panza are harmless, picaresque characters of fiction, while contemporary crusaders of righteous goals endanger democratic principles and processes. These delusionary folks include those whose targets include undocumented immigrants and voter-identification procedures.
At the end of his journey, Don Quixote regains his sanity and retires, never again to embark upon a quest. Would that Kobach and Richman follow this example.
The Kansas trial concluded at the end of March, and we will report on the decision when issued.