The polls in Kansas are open for in-person voting today in the state’s primaries. Republicans will choose the party’s Senate candidate to replace the retiring Pat Roberts. After Mike Pompeo passed on the race and Susan Wagel dropped out, it comes down to Congressman Roger Marshall and former Kansas secretary of state Kris Kobach. Some reports, based mostly on campaign internal polls, have the Marshall–Kobach race a dead heat. If Kobach wins, it would be a huge victory for Democrats, who have not won a Senate election in Kansas since 1932. Which is why Democrats are throwing everything they have into picking Kobach as the Republican nominee. Kobach’s history shows us two things: He’s bad at winning elections, and he’s worse at doing his job.
The Democrats’ Favorite Kansas Republican
National Republicans have pulled out all the stops to stop Kobach (including convincing Wagel to drop out in order to unite behind Marshall), in much the same way they did successfully against Steve King and Roy Moore. This is not a step the party takes lightly these days. Republicans under Donald Trump have been more willing than in the past to get behind hard-edged populists of Kobach’s stripe. Trump enthusiastically endorsed Kobach in the gubernatorial primary in 2018. But Trump has mostly stayed out of the primary this time except for reportedly asking the Club for Growth to stop running ads against Marshall (they did).
According to media reports, Ted Cruz talked Trump out of endorsing Marshall. The reasons why reflect the party’s lingering collective-action problems: a political consultant closely allied with Cruz, Jeff Roe, is working for Bob Hamilton, a plumbing executive running behind Marshall and Kobach. Cruz reportedly invoked Marshall’s having endorsed John Kasich in 2016 to convince Trump not to back him.
Democrats have no such qualms about whom they support. Democratic groups have deluged the race with money to prop up Kobach, in a transparent repeat of the strategy they successfully used to get Todd Akin nominated for the Senate in 2012, leading to Claire McCaskill’s reelection and blowback for Republicans around the country.
The anti-Marshall ads of the Sunflower State PAC, a Democrat-linked group, are deliberately painting him as a “swamp creature” to drive voters to Kobach instead. Some Sunflower State “ads attack Marshall from the right, lumping him in with ‘Mitt Romney Republicans and Never Trumpers’ who think Kobach is ‘too conservative,’” as The Atlantic puts it. With around $4 million in ad spending, Sunflower State has been the single largest spender in this primary election, in a race where the Democratic candidate faces no real opposition. There should be no doubt who Sunflower is:
The group placed its reservations through Old Town Media LLC, a media firm that has also placed nearly $4 million of ad reservations for Unite The Country, the super PAC supporting former Vice President Joe Biden’s presidential campaign. On its FEC forms, the group lists Amalgamated Bank as its financial institution, a company that supports progressive causes and lists as its clients, the Democratic National Committee, environmental groups, labor unions, Hillary Clinton’s 2016 campaign and the Biden Foundation.
Old Town also made ads for Bernie Sanders in 2020. What are the odds that these people have the best interests of conservative voters at heart? Representative Joaquin Castro told The Atlantic, “I’m confident that they are acting in good faith in terms of what they think the best matchup would be for a Democrat in Kansas.” Anybody who buys their pitch is a sucker.
A Loser Who Loses Elections
Kobach has run for elected office many times, and what he generally tends to do is lose. He used his local election to the Overland Park City Council in 1999 as a springboard to run for the state senate the following year. He finished third in the primary. In 2004, he won the Republican nomination to run for Congress in Kansas’s Third District, beating the 2002 candidate by a little over 200 votes in the primary. In the fall, George W. Bush carried the district 55 percent–44 percent; Kobach got clobbered, losing 55 percent–43 percent. His opponent, three-term Congressman Dennis Moore, had never won by more than five points in any previous race. In 2010, Moore retired, and his wife Stephene lost the district by 20 points to Kevin Yoder.
2010 was a Republican landslide statewide, and it carried Kobach into office as secretary of state 59 percent–37 percent, running four points behind Sam Brownback’s campaign for governor, and 11 points behind Jerry Moran’s re-election to the Senate. Kansas’s four congressional districts went Republican by between 58 percent and 74 percent. Only the Republican candidates for attorney general and state treasurer — who, like Kobach, defeated Democrat incumbents — ran behind him, and everybody won by double digits. In 2014, Kobach was reelected. He got 59 percent of the vote, running nine points behind the state treasurer, eight behind the state attorney general, and behind three of the four Republican House candidates. He did run ahead of Brownback and Pat Roberts, both of whom staved off serious, nationally funded challenges to reelection.
Six years later, Kobach has yet to win another election. He ran for governor in 2018, winning the nomination by 391 votes against incumbent Jeff Colyer but drawing just 43 percent of the vote in the fall, losing a three-way race by five points. 2018 was a challenging year for Republicans, but Republican gubernatorial candidates still managed to win races in Iowa, Ohio, Florida, Georgia, Arizona, Texas, Tennessee, Maryland, Massachusetts, New Hampshire, and Vermont. Kobach’s 43 percent was the lowest by a Republican in an open-seat governor’s race in Kansas since 1956. Meanwhile, Marshall won Kansas’ first congressional district (formerly the House district of Roberts and Bob Dole) with two-thirds of the vote in 2016 and 2018.
Kobach is an immigration hardliner and a zealous defender of ballot security against voter fraud. In and of themselves, these are not necessarily liabilities for a Republican; they will cost some voters, but they will attract others, and some conservatives may be willing to accept a greater risk of losing elections to get someone who fights on these fronts. Yet Kobach is particularly divisive in how he presents these positions, which is part of his political problem. His hard-edged rhetoric and public stances make him more vulnerable to inroads by a moderate Democrat, and the Democratic candidate in this race, Barbara Bollier, was a lifelong Republican who only switched parties to endorse Kobach’s gubernatorial opponent, Laura Kelly, in 2018.
Kris Kobach’s Incompetence
The larger issue, however, in terms of both politics and policy, is that Kobach is chronically incompetent. How incompetent? Nearly everything Kobach attempts either fails to turn into public policy or gets struck down in court, often resulting in personal legal sanctions on him and requirements that states and localities hand over taxpayer money to left-wing activists for legal fees. Some of this, it is true, can be ascribed to the federal courts’ hostility to restrictive immigration policy. Then again, immigrants facing deportation lose in federal court well over 90 percent of the time. A factually well-presented case for immigration enforcement is far from an obvious loser in court.
Moreover, courts are more willing to entertain factually grounded defenses of election laws. Republicans in states such as Ohio and Georgia, for example, have been mostly successful in defending purges of the voter rolls (which are, in fact, required by federal law).
In short, if you take border enforcement and ballot security seriously, you do your homework with care and present the best case for the particular steps you are advocating. Kobach is the poster boy for doing his homework badly and defeating his own cause. The examples are too numerous to recount all of them here, and they illustrate how Kobach has only grown sloppier over the years.
The worst parts of Kobach’s record can be found at the local-government level. Kobach once drafted an immigration ordinance for Valley Park, Mo. As a ProPublica investigation concluded:
“Victory” isn’t the word most Valley Park residents would use to describe the results of Kobach’s work. With his help, the town of 7,000 passed an ordinance in 2006 that punished employers for hiring illegal immigrants and landlords for renting to them. But after two years of litigation and nearly $300,000 in expenses, the ordinance was largely gutted. Now, it is illegal only to “knowingly” hire illegal immigrants there — something that was already illegal under federal law. The town’s attorney can’t recall a single case brought under the ordinance.
This came to be a pattern in Kobach’s legal work, in which he made money and his clients got stuck with big bills for laws that were never enforceable:
Kobach used his work in Valley Park to attract other clients, with sometimes disastrous effects on the municipalities. The towns — some with budgets in the single-digit-millions — ran up hefty legal costs after hiring him to defend similar ordinances. Farmers Branch, Texas, wound up owing $7 million in legal bills. Hazleton, Penn., took on debt to pay $1.4 million and eventually had to file for a state bailout. In Fremont, Neb., the city raised property taxes to pay for Kobach’s services. None of the towns are currently enforcing the laws he helped craft. . . . since 2005 Kobach has made at least $800,000 through this advocacy.
The Hazleton case was especially egregious:
By the end, in March 2015, Kobach acknowledged that Hazleton was in financial distress. In a court filing, he told the judge the city simply could not afford to pay the ACLU’s fees. “An award of the full amount of fees and costs sought by the Plaintiffs, or even half that amount, in one lump sum would likely be the straw that breaks the camel’s back and drives the city into bankruptcy and [receivership],” he wrote. . . . The judge rejected the plea. . . . Hazleton was declared financially distressed in September 2017 by the Pennsylvania Department of Community and Economic Development and entered into a recovery plan with the state. City officials deny that the $1.4 million payment to the ACLU forced their hand, but it was a significant sum for a municipality that in 2017 took in $9.5 million in revenue.
States that listened to Kobach have not fared much better. Kobach helped Arizona draft its 2010 law, SB 1070, which among other things required immigrants to show documentation. Three of the law’s major provisions were struck down by the U.S. Supreme Court in Arizona v. United States in 2012, and a 2016 deal to end the remaining litigation neutered most of what was left of SB 1070. He also helped Alabama draft a similar, and in some ways stricter, law, HB 56, the Alabama Taxpayer and Citizen Protection Act, in 2011. Courts ended up striking down provisions that would have “required schools to report how many of their students are in the country illegally or have undocumented parents, made it illegal for undocumented residents to engage in business transactions, negated contracts entered into by unauthorized immigrants, and made it illegal for unauthorized immigrants to look for work.” Ultimately, Alabama attorney general Luther Strange settled the remaining litigation by abandoning additional provisions, restricting when local police could check the immigration status of suspects in custody, and paid $350,000 in attorney fees to the bill’s challengers, including the left-wing Southern Poverty Law Center.
A Kansas voter-registration law turned into a particular fiasco in a March 2018 trial, where unprepared Kobach assistants watched Kobach’s own expert witness repeatedly admit that he could not support or defend Kobach’s public statements about voter fraud. The expert’s own work did not fare much better:
Kobach’s estimate of 18,000 illegal voters in Kansas derived from [expert Jesse] Richman’s survey of just 37 people with temporary driver’s licenses. Six of the 37 said they attempted to register to vote. The percentage was applied to the total population of noncitizen residents in Kansas without respect to sample size or demographics.
In October, the trial resulted in yet another personal humiliation for Kobach:
Kris Kobach has entered into a diversion agreement over complaints about his conduct during federal court proceedings, acknowledging he failed to provide proper supervision to his staff. The confidential agreement resolves complaints made with the Kansas Disciplinary Administrator’s Office. . . . A public notice of the agreement says Kobach stipulates he didn’t properly supervise lawyers and non-lawyers while representing himself as the Kansas Secretary of State in a lawsuit over his signature legislation, which required new voters to show a birth certificate or other proof of citizenship before registering to vote.
This was far from a first:
A federal judge fined Kobach $1,000 in 2017 for misleading the court about documents he carried into a meeting with President-elect Donald Trump. Kobach paid that fine with the credit card of a staff member who was deployed to Ukraine with the Oklahoma Army National Guard. Last year, a separate judge held Kobach in contempt for failing to comply with her orders. She wanted county election officers to send postcards notifying prospective voters they could participate in elections even if they failed to provide proof of citizenship when registering. Kobach and his staff didn’t relay that message to the counties. The state had to pay the ACLU $26,000 in legal fees over the contempt finding. U.S. District Judge Julie Robinson scolded Kobach and his assistants throughout the 2018 trial as they routinely failed to follow court rules. When Robinson struck down Kobach’s law as unconstitutional, she ordered Kobach to return to law school. Kobach used state funds to pay $359 for the six-hour online course on civil trial basics.
Kobach was also chairman of the Kansas Republican Party for two years, in 2007-08. A Federal Election Commission audit found three violations of campaign laws during his tenure, including the acceptance of an illegal corporate campaign contribution. In 2014, the Kansas supreme court struck down Kobach’s effort to force Democrats to keep their Senate candidate, Chad Taylor, on the ballot when the Democrats wanted to unify behind independent Greg Orman (Orman went on to run against Kobach in 2018).
At the national level, Kobach is best known for running the Presidential Advisory Commission on Election Integrity until it was disbanded in defeat by President Trump in January 2018. The Commission destroyed all its data rather than comply with a court order to include Democrats, and transferred responsibilities — but not Kobach — to the Department of Homeland Security. The Commission was a setback on every front for ballot-security advocates, producing essentially no reports or data that could support any of the policies Kobach championed. State governments were so uniform in refusing to comply with Kobach’s requests for data such as partial voter Social Security numbers that even Kobach himself concluded Kansas could not legally comply with his own requests.
Kobach also had to beat an embarrassing retreat from his claims of extensive voter fraud in New Hampshire in 2016:
[Kobach] admitted that his wording in the Breitbart column may have been imprecise, since it’s possible that the votes he highlighted as potentially illegal could very well have been permitted under state law. “This obviously is a subject of concern because there have often been anecdotal reports of people driving into New Hampshire because it’s a same-day registration state and it’s a battleground state” . . . Kobach’s Breitbart column argued that the thousands of people who registered to vote on Election Day in New Hampshire with out-of-state licenses could mean the “election was stolen through voter fraud.”. . . Kobach said Tuesday that in order to prove whether illegal voting swayed the state’s elections, election officials would have to investigate the voters’ status and then undergo the near-impossible task of finding out for whom any illegal voters cast their ballots. “Until further research is done, we will never know the answer regarding the legitimacy of this particular election,” he said.
Well, yes, somebody has to investigate things to find out if they are true. Perhaps a presidential commission? Maybe a state election official should not go around asserting things are true without any investigation having been done?
If you want a job done, don’t hire Kris Kobach. You may get some excuses, but you will never get results.