The federal trial over a Kansas law requiring people to show citizenship documents like a birth certificate or passport when registering to vote begins on March 6 in Kansas City. The American Civil Liberties Union will represent the League of Women Voters and several individuals whose voting rights were violated. Kris Kobach — the secretary of state of Kansas, chief architect of the law, and the defendant in the lawsuit — will represent himself.

From 2013 to 2016, more than 35,000 Kansans were blocked from registering because of Kobach’s documentary proof-of-citizenship law — approximately 14 percent of new registrants. Many Kansans, including several of our clients, went to the polls on Election Day in 2014 with every reason to believe that they were registered, only to be told, “Sorry, you haven’t proven that you’re a U.S. citizen.”

We filed suit in 2016, charging that Kobach’s law undermines the fundamental right to vote and violates the National Voter Registration Act. In a preliminary ruling for the 10th Circuit, Judge Jerome Holmes, who was appointed by George W. Bush, found that the law had caused the “mass denial of a fundamental constitutional right.”

The law is now blocked under the 10th Circuit’s order, which stays in effect until the trial’s outcome.

What are the national implications of the trial?

The stakes are high, and not just for Kansans who want to be able to register to vote.

The NVRA was designed to reduce barriers to registration as well as to ensure a level of uniformity and consistency in voter registration amongst the states. Kobach, however, is arguing that every state can demand anything it wants from people seeking to register to vote. Should he prevail, that uniform system of voter registration would be turned into a patchwork.

This trial is also very much a part of Kobach’s broader voting agenda. Documents, which were unsealed as a result of our litigation, confirm that Kobach is looking to gut the NVRA. On Nov. 20, 2016, he was photographed carrying his agenda for the “First 365 Days” of the administration before a meeting with President-elect Trump and advisors Steve Bannon, Stephen Miller, Jared Kushner, and Reince Priebus. The plan included an amendment to the National Voter Registration Act to “promote proof-of-citizenship requirements.” Kobach gave each of them a copy of his plan, pitching the idea that noncitizens were potentially swinging election results.

Seven days later, the president tweeted that he had won the popular vote if you deduct the “millions of people who voted illegally,” a claim that Kobach also believes. In May 2017, Trump formed the Presidential Commission on Election Integrity with Kobach as vice-chair. The commission has since been disbanded following a series of lawsuits, including ours. Throughout 2017, Kobach was in the national spotlight, raising the specter of voter fraud, a claim he has yet to substantiate and one that the trial in Kansas will hinge upon.

What will the trial focus on?

The 10th Circuit found that, under the NVRA, it is illegal for Kobach to demand citizenship documents unless he is able to demonstrate that 1) there are a substantial number of noncitizens registering to vote in Kansas and 2) that it is necessary to require citizenship documents from every registrant.

Kobach bases his argument on a study that he claims shows that 18,000 noncitizens might be registered to vote. The author and designer of that survey, a professor at Harvard, will testify on our behalf at this trial. The study shows that statistically there were no noncitizens registered to vote in Kansas.

We will also ask the court to rule on our motion to hold Kobach in contempt of court for repeatedly refusing to comply with the court’s preliminary order blocking the law, and with related orders on notifying the public about voter registration requirements. A federal magistrate has already sanctioned Kobach for making “patently misleading representations to the court."

Why is the law illegal?

To comply with the NRVA, states have to provide people with an opportunity to register to vote when they apply for or renew their driver's licenses. Instead, Kansans were being required to present additional citizenship paperwork, such as a birth certificate or passport, in order to be registered. Many were not being informed at all, only to find out later that their applications had been suspended, and that they were not allowed to vote. And some voters who did actually produce the citizenship documentation still ended up suspended because the department of motor vehicles failed to transmit that information to the elections office.

As the federal district judge put it, Kobach’s law created “a confusing and inconsistently-enforced maze” of requirements for voters.

Whom did it affect?

The law applied to all new voter registration applications in the state, whether you were registering at the DMV, by mail, or through other available means. As a result, between 2013 and 2016, more than 35,000 voter registration applications — or about 1 in 7 — were blocked. Almost half of the people who have seen their registrations blocked by this law are under the age of 30.

Can’t people just order birth certificates?

People sometimes ask, “What’s so hard about getting a birth certificate?” And it might not be hard for some people.

But not everyone has a copy of their birth certificate and getting one is not free. Having to send away for a birth certificate takes time and money. For instance, one of our clients, Donna Bucci, tried to register to vote, but she did not have her birth certificate. She was born in Maryland, a state that charges over $20 for the document. Donna works at a correctional facility and could not afford to spend that money. Consequently, she was deprived of her most fundamental right in our democracy.

The requirement also makes voter registration drives impossible. Most people don’t carry copies of their birth certificates and passports around with them and aren’t comfortable providing them to strangers.

How can I follow along with the trial?

Follow the ACLU on Twitter at #ACLUvKobach for real-time updates.

One of the proudest moments of the disability rights movement came on Sept. 17, 1987. After over a decade of scandals, exposés, and advocacy, the state of New York finally closed down Willowbrook State School. As the last of the people with disabilities who suffered under Willowbrook’s horrific conditions left for life in the community, many saw an opportunity to plan for a brighter future.

With the rise of Medicaid Home and Community Based Services, people with disabilities were increasingly gaining support in the community rather than being forced into segregated lives in institutions. Today most people with disabilities are supported in their own homes or communities. While more work remains to be done, Americans with disabilities enjoy more rights, greater autonomy, and higher quality of life than ever before.

On Monday, Donald Trump proposed turning back the clock. “We’re going to have to start talking about mental institutions, because a lot of folks in this room closed their mental institutions also,” Trump said in remarks to a group of the nation’s governors. “You know, in the old days we had mental institutions. We had a lot of them. And you could nab somebody like this, because they … knew something was off.”

Trump’s remarks are part of a pattern. Across the country, elected officials have responded to gun violence by calling for restricting the rights of people with mental illness and returning to outdated practices of segregating them and other people with disabilities. Shortly after the shooting in Parkland, Florida, the Broward County sheriff called for expanding the state’s involuntary commitment law, the Baker Act, to make it easier to involuntarily commit a person based on their social media postings.

Current law allows for involuntary commitment where authorities can show that an individual is a danger to themselves or others. This standard is the result of generations of advocacy to address the over-use of institutionalization and the abusive way involuntary commitment statutes have been employed in the past. Even today, many states are too quick to resort to involuntary commitment. Florida has a track record of overusing the Baker Act, particularly on children with developmental disabilities. In Miami-Dade County, the Baker Act is used more than three times every school day. This and similar practices subject students with disabilities to coercion and segregation without offering any meaningful benefit to them or public safety.

Mass shootings demand a meaningful policy response. But a closer look at the data shows that segregating people with mental illness and bringing back outdated and dangerous long-term institutionalization is not the way. Indeed, a comprehensive analysis from the Bazelon Center for Mental Health Law found no meaningful correlation between the availability of psychiatric hospital beds and homicides involving firearms. Mental illness has very little predictive value for determining an individual’s likelihood of committing a violent crime.

But for the president, it's easier to offer knee-jerk, uninformed opinions rather than to do the hard work of formulating fact-driven policies that refrain from scapegoating entire communities. 

Legal scholars and progressives have long expressed doubt about the utility of courts in advancing social justice. They argue that courts are inherently conservative, that victories often prompt costly backlashes, and that focusing on courts diverts attention from the more important work that needs to be done in the political arena.

The first year of the Trump administration suggests that this skepticism is overstated. Much to the president’s dismay, those he calls “so-called judges” have repeatedly ruled against the Trump administration. Judges appointed by Republicans and Democrats alike have enforced constitutional guarantees against a president who has shown little regard for the Constitution.

In this respect, the courts have performed just as Alexander Hamilton hoped they would. In the Federalist Papers, Hamilton argued that a judiciary with life tenure and the power to declare the political branches’ actions unconstitutional was essential, so that judges could serve as “the bulwarks of a limited Constitution.” Rarely has that role been more essential.

Consider the results.

Muslim ban 

Multiple courts have invalidated all three versions of President Trump’s travel ban, enacted to make good on his campaign promise to prohibit Muslims from entering the country. The first court ruling against the ban came in an ACLU case filed just one day after Trump introduced it. Trump abandoned the first two versions of the ban after courts repeatedly ruled them illegal. The third and most recent version, also declared invalid by the courts, is now headed to the Supreme Court. But already, Trump has been forced to revise and limit his initial action.

Transgender military ban 

Two federal courts have preliminarily struck down President Trump’s prohibition on transgender people serving in the military, a policy he announced on Twitter without even consulting the military, which had previously determined that there was no reason to exclude transgender servicemembers. In December, two federal appeals courts unanimously rejected the administration’s effort to lift those injunctions, pending appeal. Cutting its losses, the administration chose not to seek Supreme Court review.

Abortion access 

Federal courts in the District of Columbia have twice ordered the Trump administration to stop obstructing access to abortion for teenagers in federal immigration custody. The head of the Office of Refugee Resettlement, Scott Lloyd, has no experience with immigration but is an ardent opponent of abortion. He has refused to allow four undocumented minors in federal custody to obtain abortions, even though they have a constitutionally protected right to do so. After federal courts repeatedly ruled for the women, the Trump administration backed down in the two most recent instances, releasing the women from its custody when the ACLU filed suit.

DACA

In December, a federal court in San Francisco temporarily ordered the administration to allow “Dreamers,” the undocumented immigrants whose parents brought them here as children, to renew their applications for protection from deportation, under the program known as Deferred Action for Childhood Arrivals, or DACA. On Jan. 13, the administration announced that it would follow the order and allow DACA recipients to renew their status pending a final resolution of the lawsuit.

“Enemy combatant” detention

In December, a federal court ordered the Trump administration to afford the ACLU access to an unnamed U.S. citizen the military has been detaining in an undisclosed location in Iraq without charges and without access to a lawyer for four months. The government chose not to seek an immediate appeal, and allowed the ACLU to consult with the detainee, who confirmed that he wanted legal help to challenge his detention. In Hamdi v. Rumsfeld, the Supreme Court sharply rejected President George W. Bush’s assertion that he had unchecked power to hold U.S. citizens as “enemy combatants,” yet Trump is at it again.

Contraception insurance coverage

A federal court in Pennsylvania has preliminarily enjoined President Trump’s rollback of an Obamacare requirement that employers cover the cost of contraception in the insurance plans they provide to their employees.

Sanctuary cities

A federal court in California barred the Trump administration from denying federal funds to cities and counties that adopt “sanctuary” policies and decline to enforce federal immigration laws. (Under the Tenth Amendment, states cannot be compelled to enforce federal law, but the Trump administration threatened to make big funding cuts to coerce states into doing so.)

Voter suppression

On Jan. 3, President Trump disbanded his controversial “voter integrity” commission, designed to establish a basis for supporting Republican voter suppression efforts. Trump’s order ending the commission explained that “rather than engage in endless legal battles at taxpayer expense, today I signed an executive order to dissolve the Commission.” The commission had been sued not only by numerous civil rights groups, but even by one of its own members.

Not every constitutional challenge has been successful. A federal judge in New York recently dismissed a case charging Trump with violating the Constitution’s Emoluments Clause, which forbids the president from accepting any “emolument,” or payment, from a foreign or domestic state official. The court did not rule on the merits, but merely concluded that the plaintiffs did not have sufficiently concrete injuries to raise the claim. (Two other Emoluments Clause lawsuits are pending, brought by members of Congress and the attorneys general of Maryland and the District of Columbia.) But other than this decision, the Trump administration has been singularly unsuccessful defending its actions in court.

In some sense, the long line of victories is a sign of how careless Trump has been when it comes to constitutional constraint. Trump’s utter disregard for convention, including in constitutional matters, does not play well with courts, whose job is to maintain those very conventions. In addition, there can be little doubt that the overwhelming public condemnation of many of these initiatives, by experts and ordinary citizens alike, and by Republicans as well as Democrats, has played an important part in buttressing the judicial push-back. We should never underestimate the power of dissent and criticism as a constraint on government abuse.

The battle is by no means over. Most of these cases are ongoing. The Supreme Court has yet to rule on the merits of any of them. It will almost certainly take up the challenge to the latest version of the travel ban later this year, and that will be Trump’s first test in the Supreme Court. (The Court has stayed the lower courts’ injunctions pending its review).

It remains to be seen whether the Supreme Court will be as forceful a “bulwark of a limited Constitution” as the lower courts have been. But one thing is clear: thus far, the federal courts have been willing to do just what Hamilton hoped they would: Stand up to the president in defense of liberty.