Kris Kobach Tackles Illegal Immigration
Kansas’ secretary of state is redefining immigration laws not only in his state, but in Arizona and elsewhere.
Not many politicians still mount deer heads on the walls of their offices, but Kris Kobach isn’t afraid of going after big game. Despite the relative modesty of his position -- Kobach was elected Kansas secretary of state back in 2010 -- he is smack at the center of two of the most controversial issues states are facing today.
Shortly after taking office last year, Kobach convinced the Kansas Legislature to pass what is arguably the nation’s strictest voter fraud law. But Kobach is known most widely for his efforts to turn illegal immigration into a front-burner issue at the state and local levels. “I don’t know of anybody else driving the [illegal immigration] issue nationally as much as he is doing,” says Kansas state Sen. Steve Abrams, a Republican.
Kobach helped draft the 2010 Arizona law that, among other things, requires state and local law enforcement officials to check the immigration status of individuals they have stopped and have “reasonable suspicion” to believe are in the country illegally. That law has since been imitated by several other states -- thanks, in part, to Kobach’s own doing. It may spread further if the U.S. Supreme Court upholds it this spring.
Kobach already enjoyed a victory before the Supreme Court last year with another Arizona law he helped write. That one requires businesses to use the federal E-Verify system to check the immigration status of employees. Kobach’s success in drafting and defending laws meant to curb illegal immigration -- not just in Arizona, but also in Alabama and other states and localities from Pennsylvania to Texas -- has turned him into a leading figure of derision for some Hispanic groups and liberal immigration advocates. After Kobach endorsed Mitt Romney for president in January, the leader of a group of Hispanic Republicans said that Romney had committed “political suicide” by accepting the embrace of such a controversial figure. “I did not anticipate when I first started working on this issue,” he says, “that someday I would be seen as a hero by some and a horrible villain by others on a national scale.”
For a relatively obscure figure like Kobach to have become a big political target shows that his opponents on the immigration issue view him not just as deeply misguided but also as a real threat. As much as anyone, Kobach has come up with the legal and political strategies that have helped make a traditionally federal concern into an area where states are, by any measure, far more active. Kobach may be the rare figure who has enough depth of understanding of complex issues to write 150-page appellate briefs, while also possessing the political skill to boil them down into digestible sound bites.
“Kris provided the understanding of complex legal issues that could take the sophistication of our approach to a whole new level,” says Michael Hethmon, general counsel of the Immigration Reform Law Institute, a D.C.-based advocacy group where Kobach continues to serve as counsel despite his position.
His opponents say the ideas he expresses are dangerous and even inhumane—seeking to prompt illegal immigrants to “self-deport” by making their lives in the states so miserable and tenuous that they’ll decide to leave. But even they grudgingly recognize Kobach has been an innovator in creating a role for states and localities to step in to once the feds failed to act on immigration. “He is one of the most important voices in the immigration debate, one of the key people who drove the debate to the states,” says Tamar Jacoby, president of ImmigrationWorks USA, a business-backed group that sees immigrants as making important economic contributions. “I disagree with him 100 percent, but he’s a very important and influential voice.”
Kobach's background sounds like a parody of an inflated resumé: Eagle Scout, valedictorian, a national rowing champion despite a long battle with diabetes. At Harvard, his prize-winning student thesis -- later published as a book -- examined the role of the business community under apartheid in South Africa. On a scholarship from the British government, Kobach completed both a master’s and a doctorate in political science from Oxford University. Then, after earning his law degree from Yale, he became a constitutional law professor. “Everything has the overachievement character about it,” says John Ashcroft, who served as President George W. Bush’s first attorney general and was once Kobach’s boss. “I don’t know of a surpassing resumé anywhere in public service than that of his, period.”
Kobach caught the political bug early, as a self-described “debate geek” taking part in Kansas’ active culture of political argument. Four years out of law school, he was elected to the Overland Park City Council, but his colleagues thought he’d soon have his eye on the next opportunity. “I didn’t think he was going to stay on the City Council long,” says Kansas state Sen. Tim Owens, a Republican. “I was there for 24 years. He was there for two.”
In fact, Kobach grabbed one of the ultimate gold stars for overachievers -- a White House fellowship. As it happened, it landed him in the Justice Department. He started in September 2001 -- a week before the terrorist attacks that, along with so much else, changed the department’s entire approach to immigration and border strategy. Kobach quickly rose to become Ashcroft’s chief adviser on these issues. Among the policies Kobach helped devise was the creation of the National Security Entry-Exit Registration System, or NSEERS -- a controversial program that limited access to the country by individuals, primarily from certain Middle Eastern and North African countries, and required that they be fingerprinted, photographed and interrogated.
“America was no longer a setting in which we could enjoy the insulation of oceans to somehow provide a major component of our security,” says Ashcroft. “Kris certainly became the point person in this respect and helped develop some strategies that were very effective.”
The experience instructed Kobach in the ways in which local and state law enforcement officials often collaborated with their federal counterparts -- and the ways in which they failed to do so. Several of the 9/11 hijackers -- including several of the pilots -- had previously been in local police custody when they were not in compliance with immigration law, yet they were let go. That, he describes as “a missed opportunity of tragic dimensions.”
He wrote about this in a law review article. But as a practical matter, it became his mission to tie state and local law agencies more closely to federal immigration enforcement. Ideas such as requiring the use of E-Verify or creating penalties for landlords who rent to illegal immigrants came later, but the kernel of the idea for SB 1070, the Arizona law now under review by the Supreme Court, came to him while he was still at Justice. And, while he was working for Ashcroft, he came into contact with the Immigration Reform Law Institute, which provided the main base for his legal efforts.
It’s fair to say that all of Kobach’s ideas about how to discourage illegal immigration have proven to be controversial. Not all of them have passed legal muster. Some local officials whom he’s advised regret falling under his sway, saying that he’s saddled them with little more than headaches and legal bills. Kobach continues to act as the attorney for several of the jurisdictions whose laws he helped write.
Carol Dingman, former mayor pro tem of Farmers Branch, Texas, which is one of those cities that has had to spend millions to defend a Kobach-drafted immigration ordinance, wrote a letter to a newspaper complaining about him. “Our mayor said he was an expert in immigration law who would help the city on a pro bono (free) basis,” she wrote. “Mr. Kobach was paid $100,000. So much for pro bono.”
But Kobach has managed to position himself at the center of state and local immigration policies that are being pushed into spaces left open by federal law. It’s not a role he’s surrendered as secretary of state. “When he worked for Bush, he wrote the opinion that states can detain illegals, and now when he goes around the country, that’s the opinion he cites,” says Kansas state Rep. Ann Mah, a Democrat and Kobach critic. “In my mind, he’s not looking for an immigration solution; he’s looking for a job. Cities and states are spending millions defending his laws.”
Even as his legal star was rising, Kobach found his climb up the political ladder to be a bit more slippery. He lost a race for Congress in 2004, his opponent having been successful at portraying him as too much of a right-wing ideologue to suit what was then the state’s only Democratic district.
He became chairman of the state Republican Party in 2007, where he courted controversy by setting up a Loyalty Committee designed to ferret out and punish local party officials who had helped Democrats. (Kobach later conceded privately that the name was a mistake.) Just days after he announced his bid for secretary of state in 2009, the Federal Election Commission released an audit that found widespread instances of financial mismanagement during his tenure as state party chair. Kobach was quick to put the blame on the party’s executive director, saying he’d been guilty of nothing other than a “very bad hiring decision.”
All this didn’t seem to hurt Kobach during his first statewide race. He overcame serious opposition in the GOP primary and easily defeated Chris Biggs, who had been appointed as the Democratic incumbent. Kobach fashioned himself as the “defender of cities and states that fight illegal immigration.” He made voter ID requirements the central focus of his campaign, despite the fact that Biggs and his predecessors said that voter fraud was not a significant problem in the state. “My opponent was very successful in making the race about immigration, which of course is not anywhere near the responsibility of the secretary of state,” Biggs says. “He managed to tie the immigration issue to the secretary of state race with a big bow around it.”
Kobach is fond of pointing out that voter fraud is enmeshed in Kansas history, back to the 1850s when Missourians stuffed the ballot box to elect a pro-slavery territorial legislature. But even the figures he cites don’t point to any such concerted efforts in contemporary times. The figure of 41 incidents of improper voter or registration activity -- not actual voting -- for 2010 is mainly made up of honest mistakes, says Mah, the Democratic state representative. Instead of examples of impersonation, illegal immigrants or dead people voting, the list is made up more of snowbirds seeking to vote in two states or felons who turned out to be ineligible. There wasn’t any evidence that Kansas was seeing large numbers of illegal aliens voting, or that there was a conspiracy on the part of any party or group to affect the outcomes of elections, Biggs says.
During the campaign, Kobach complained that a Wichita man named Alfred K. Brewer had voted in the August 2010 primary, despite having died in 1996. It turned out the vote had been cast by his namesake son. “I don’t think this is heaven, not when I’m raking leaves,” Brewer told The Wichita Eagle.
But Kobach was able to use an argument that’s been effective in other states. He said that requiring voters to show a photo ID is no burden at a time when they have to do the same to board an airplane, enter a federal building or even, as he puts it, to “buy the kind of Sudafed that works.” He notes that in the first election to be held since the law was enacted -- a tax issue in Cimarron, a small town near Dodge City -- every voter managed to produce a photo ID, with the exception of one woman who didn’t bring hers to the polls in protest against the new law.
Kobach says he “bent over backward” to guard against any conceivable scenarios that might prevent a citizen from being able to register and vote. Still -- and again, as in other states -- critics of the new law say it will discourage voting among people who lack photo IDs and, in some cases, the birth certificates that may be necessary to get them. (The Kansas law requires that people offer proof of citizenship when they register.) They argue the bill Kobach helped pushed through -- not at all unique among states, but tougher than the general run of recent voter ID laws -- corrects a nonexistent problem and instead will serve mainly to depress and even suppress voting, most notably among the very old, very young, women and persons of color. In other words, demographic groups that by and large would be expected to support Democrats. “He’s doing a better job as secretary of state than he did when he was the Republican state chair,” says Mah.
Some Kansas legislators say Kobach can be sloppy with the facts -- that despite his glittering academic credentials and his confident, rapid-fire way of speaking, he doesn’t always follow through or have his figures correct. As he goes about an average day -- addressing legislators as “you guys” during a committee hearing, or speaking to leadership training groups visiting the Capitol -- Kobach sometimes does manage to mix up numbers and dates.
Mah speaks of Kobach almost as though he were a virus -- a political force that must be stopped in Kansas before he spreads to other states. Just as happened with his immigration language, Mah worries that his especially rigorous approach to voting and registration requirements will influence lawmakers elsewhere. The notion that he’s a kind of Johnny Appleseed of conservative legislation is one that Kobach happily subscribes to. He notes that Alabama’s voter ID bill copied the Kansas language on proof of citizenship verbatim. “I think Kansas deserves some credit for crafting a model that other states can follow,” Kobach told the Kansas House Standing Committee on Federal and State Affairs recently. Kobach influenced Alabama legislation even more directly last year, when he helped draft that state’s illegal immigration statute.
Some legislators in Kansas complain that because he’s still going around and writing laws in other states -- and defending other jurisdictions’ laws in court -- Kobach is doing a disservice to the Kansas constituents who expect him to devote his attention and energy to his state office. The state ethics commission ruled that Kobach can’t accept speaking fees, but won’t stop him from pursuing legal or political activities elsewhere. State Rep. Melody McCray-Miller, a Democrat, says Kobach’s outside pursuits are unethical anyway.
No one in Topeka seems to expect that secretary of state is the last political job that Kobach, who is 45, will strive after. That leads officials, such as McCray-Miller, to complain that Kobach is using the position to raise his personal visibility, giving him a “bully pulpit” much bigger than he commanded as a constitutional law professor. “He is using a state-held position to further a larger agenda that is not benefiting the voters he is supposed to be protecting,” she says.
Kobach hasn’t succeeded in persuading his home state to stiffen laws regarding illegal immigration. The state’s argricultural and meatpacking interests haven’t been encouraged by news reports of crops rotting in the field in Alabama after Kobach’s law passed there.
Kobach has argued in court against several state laws offering in-state college tuition rates to children of illegal immigrants, but hasn’t been able to convince his own Legislature. (Legislation to block in-state tuition passed the House overwhelmingly last year, but died in the Senate.) The Kansas program requires students to have lived in the state at least three years, which is proof enough that its main intent is to offer a brighter future to children who never intended to break the law themselves, says state Rep. Mario Goico, a Republican who was born in Cuba. “This is not an issue of nationality or illegal immigration -- it’s an issue of a child getting an education,” Goico says. “When you were 14 or 15, did your parents ask for your opinion to move to another state, let alone to another country?”
Kobach remains hopeful that legislators will see things his way -- particularly if fellow conservatives are successful in their campaign to oust the dominant moderate Republicans from control of the state Senate this fall. As for his work in other states, Kobach says there’s no conflict with the demands of his day job. He offers up as proof the large amount of legislation he managed to push through during his first year on the job.
Kobach maintains that he’s able to do his outside legal and political work on his own time. He says he put the final touches on the Alabama statute one weekend while sitting in a turkey blind.
When the issue was raised by Biggs and his Republican primary opponents, Kobach says he made it clear to voters and the media that he would be “a full-time, effective secretary of state” -- but that he would also continue to advise cities and states elsewhere. “I can draft a brief from my home at 10 o’clock at night,” he says. “I am going to be using my spare time trying to stop illegal immigration instead of playing golf.”