Former Kansas Secretary of State Kris Kobach has never held a permanent post in President Donald Trump’s administration. But he’s been a major figure behind some of the White House’s biggest controversies.
The latest came Thursday, when the Supreme Court ruled 5-4 against the Commerce Department’s attempt to add a citizenship question to the 2020 census.
It’s stinging rebuke of the administration, one that may have been avoided had Trump and his associates not followed Kobach’s advice.
Kobach began pitching Trump’s campaign staff on the idea of a citizenship question as early as 2016 and he presented the concept directly to the president during the first days of his administration.
Kobach’s role in crafting the policy and his public statements about it helped undermine the official justification for the question offered by Secretary of Commerce Wilbur Ross: that it was added solely at the request of the Justice Department to aid enforcement of the Voting Rights Act.
Trump tapped Kobach to serve as vice chair of a presidential commission tasked with investigating voter fraud, but the commission was disbanded after less than a year in the face of multiple lawsuits and a bipartisan backlash spurred by a massive request for voter data that Kobach had sent to every state in the nation.
Kobach served on Trump’s transition team and had a hand in crafting a travel restriction on people from Muslim majority countries that faced a string of legal challenges. The Trump administration later tweaked the policy so it could pass court muster.
“He has the reverse Midas touch. Everything he touches turns to crap,” said David Kensinger, an outspoken critic of Kobach who served as chief of staff to Sam Brownback both during his time in the U.S. Senate and Kansas governor’s office.
Kobach criticized the ruling in the census case, in which Chief Justice John Roberts joined the court’s liberal wing to block the addition of a citizenship question to the full decennial census for the first time since 1950.
“Most people would be surprised to hear that the United States stopped asking the citizenship question. Every country needs to know how many citizens it has,” Kobach said in a statement.
Kobach’s former campaign manager initially sent The Star a statement celebrating the ruling, prepared in anticipation of a legal victory for the Trump administration.
Moments later he sent a corrected statement, which was nearly identical but omitted a line praising the court.
Kobach later said in his column on Breitbart that in “a rational world” the court would have issued a 9-0 ruling in the administration’s favor.
Trump slammed the ruling on Twitter and suggested delaying the census to ensure the question can be asked.
“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” Trump said.
The 5-4 ruling sends the case back to the federal district court in New York and gives the administration time to make a different argument in support of the question. But it blocks the question for the time being after the court rejected the administration’s official explanation.
Kobach offered several possible arguments in his Breitbart column, including that the question would lead to better estimates of the rate of illegal immigration.
“The point here is that there are numerous, perfectly-valid reasons to restore the citizenship question to the census. The fact that the Commerce Department chose to focus on only one does not in any way suggest that the Department acted arbitrarily or capriciously,” Kobach said.
Ross claimed the question was meant to help the Department of Justice enforce the Voting Rights Act, but the court’s majority, including Chief Justice John Roberts, found “a significant mismatch between the Secretary’s decision and the rationale he provided. The record shows that he began taking steps to reinstate the question a week into his tenure, but gives no hint that he was considering VRA enforcement.”
Lawsuits revealed email contact between Kobach and Ross on the issue and that Trump’s former chief strategist Steve Bannon had urged Ross to consult with Kobach, a hardline critic of illegal immigration who had championed stricter voting laws during his tenure as Kansas’ top election official.
Despite efforts by the administration’s attempts to downplay Kobach’s role, the Kansas Republican was eager to promote his advocacy of the issue during his 2018 run for Kansas governor.
“I won’t go into exact detail, but I raised the issue with the president shortly after he was inaugurated,” Kobach said in a 2018 interview. “I wanted to make sure the president was well aware.”
Kobach is currently weighing a run for U.S. Senate after his efforts to land an immigration-related job in the Trump administration have failed to move forward. He has also been helping lead a controversial effort to build a wall along the southern border.
The ruling in the census case comes the same week that Axios published documents showing that the Trump administration had concerns that Kobach would be vulnerable as a nominee because of accusations from political opponents that he had allied with organizations “that had connections to white supremacist groups.” Kobach has repeatedly dismissed accusations of racism during his political career.
However, opponents of the citizenship question warned that the citizenship question could have had major ramifications for states with states with high immigrant and minority populations.
The census determines federal funding for many programs and how the nation’s 435 U.S. House seats are distributed. California and other high immigrant states stood to lose both federal aid and representation in Congress if the question deterred immigrant and minority from filling out the census as opponents predicted.
Rep. Lucille Roybal Allard, the California Democrat who chairs the budget subcommittee that oversees immigration-related agencies, said the court ruling will ensure an accurate census count.
“Trump is eager to silence the voices of vulnerable populations in our communities; that’s why he wanted a Census citizenship question that will dramatically undercount these populations,” she said.
Kobach claimed in 2018 that some states, specifically California, had their “congressional seats inflated by counting illegal aliens,” a comment that appeared to affirm the fears that the question was intended reduce the clout of these states in Congress.
But even Kobach’s home state of Kansas, which has a growing immigrant community in the Southwest corner, could have seen its numbers affected by adding the question.
Democratic Gov. Laura Kelly, who defeated Kobach in 2018, praised the decision in a statement Thursday afternoon.
“The citizenship question would have done more to deter participation than encourage everyone to be counted,” Kelly said.
“If people living in Kansas aren’t counted, it will cost our state and local communities – especially our rural communities – thousands of dollars, per person, every year for the next decade.”
Kobach revealed to the House Oversight Committee earlier this month that he had talked about the question with members of Trump’s campaign team, but he said he did not speak with Trump about the idea until after the president took office.
Bob Beatty, a professor of political science at Washburn University, said the ruling could further complicate Kobach’s efforts to join Trump’s administration following his loss in the 2018 race for Kansas governor.
“It has become very difficult to assess what Kris Kobach’s standing is with Donald Trump anymore, and this decision by the Supreme Court makes it murkier. In October of 2018 Trump said that if Kobach weren’t running for governor he would hire him in ‘two seconds,’ but he did not do so after Kobach lost the race,” Beatty said in an email.