Court’s been tough on Kobach

Chapman Rackaway

By A Contributor

Protests against Secretary of State Kris Kobach’s immi-gration agenda reached his doorstep recently. A group advocating amnesty for illegal immigrants protested on Ko-bach’s front porch, prompting him to suggest future protests could be met with a report of gunfire. 

Substantively, however, Ko-bach suffered a much more significant blow from Washing-ton D.C. On Monday, the Supreme Court issued a ruling on an Arizona law near and dear to Kobach. Eight years ago, Arizona approved Proposition 200, requiring prospective voters to provide citizenship docu-mentation. Federal law only mandates that voter regis-trants sign an oath stating they are citizens. Arizona’s referendum went further, shifting the burden of proof from the government to the registrant.    

Kobach has made a national name for himself as the champ-ion of hard-line illegal immi-gration reform. Consulting on laws like Arizona’s SB 1070, which allows law enforcement officials to stop people to check for immigration status, and developing Kansas laws, such as the 2011 bill requiring prospec-tive voter registrants to show proof of citizenship just as in Arizona, Kobach personifies the immigration warrior in the United States. 

The strategy may pay off with popularity among movement conservatives, but for the second time in a year, the Supreme Court has dealt his particular brand of policy a serious setback. In June 2012, the Court overturned mul-tiple components of SB 1070 while giving Kobach a partial victory by upholding the vital provision allowing police to demand proof of citizenship status. 

Democrats have zeroed in on these laws, publicly speaking the language of inclusion while privately betting they would fare better with more of the po-tentially disenfranchised elect-orate voting. Republicans, trum-peting fraud prevention, quietly expect to reduce participation by young, Hispanic and poorer voters and thus improve their own electoral math. With such a partisan divide on the issue, the bipartisanship of the Supreme Court’s decision was striking.

During oral arguments three months ago, Kobach contributed to the conservative magazine National Review Online, claim-ing that a liberal bloc of four justices would vote to nullify, leaving five upholding for a majority. Kobach’s prediction was drastically off.

The lead author of the opinion was the bastion of high court conservatism, Antonin Scalia. The 7-2 opinion was a massive defeat for the proof-of-citi-zenship law, rejected by not only the most liberal member of the court but the most conservative as well. Kobach may take comfort from the decision being mostly a reaffirmation of federal supremacy over the states. Justice Anthony Kennedy’s primary concern was that Arizona’s law was stricter than its federal counterpart.

Kobach’s penchant for damn-the-torpedoes policy is contro-versial in its very nature, so it is not surprising to see many of the laws he has written or consulted on challenged in the courts. Controversies like these are the reason courts exist. But Kobach’s laws tend to be overturned at least par-tially when challenged in the judiciary. If Kobach is merely engaging in sym-bolic politics, the defense costs for Kansas Attorney General Derek Schmidt’s office suggest Kobach is playing an expensive game positioning himself for either Capitol Hill or Cedar Crest. 

Kobach would not tell reporters whether or not he planned to comply with the Supreme Court’s decision, but did say that he believed the ruling would have a little to no effect on Kansas law. If Kobach does ignore the ruling, he can expect some of the same groups that have protested against him in the past to bring federal action quicker than you can say “Voting Rights Act.” With Kobach’s 0-2 record, he probably shouldn’t bet on a victory any time soon.

Rackaway is an associate pro-fessor of political science at Fort Hays State University


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