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Our Rebuttal to Kris Kobach’s Critique

Press representatives for the Kansas gubernatorial candidate have disseminated charges that a ProPublica article about Kobach’s campaigns for anti-immigration ordinances is inaccurate and biased. We respond.

Earlier today, the press team for Kansas gubernatorial candidate Kris Kobach distributed a detailed statement asserting that an article published by ProPublica and the Kansas City Star about him was rife with inaccuracies and bias. The article explored Kobach’s role in defending immigration ordinances in four small towns, focusing on the high costs (a total of $9.5 million) and meager results (laws that are defunct or defanged).

We believe our extensive reporting on this article, including interviews with more than 40 people and 30 public records requests, unequivocally supports the conclusions we reached. In addition, as is standard in ProPublica’s reporting process, Kobach was made aware of every assertion about him before the article was published, first in a phone interview with reporters from the Kansas City Star, and then in a detailed list of questions emailed several days before publication. His answers from the interview are included extensively in the article. However, he declined to respond to the emailed questions, some of which involve pieces of the story he asserts are false.

Kansas Secretary of State Kris Kobach speaks during a fundraiser for his gubernatorial campaign in Emporia, Kansas, in October 2017. (Mark Reinstein/Corbis via Getty Images)

Before laying out Kobach’s assertions and our responses, let’s start with what Kobach isn’t disputing: That his star rose while the towns he represented spent millions on litigation. Nor did his press team dispute that Kobach has made at least $800,000 from this work and that he failed to report much of this income on his state disclosure forms. (All of the “Kobach statements” below were copied verbatim from the document his press representatives circulated.)

Kobach’s statement: “None of the towns is enforcing ordinances he helped craft.” That is incorrect. Fremont and Valley Park laws are both fully enforced and in effect.

The statement that Kobach’s spokesperson, Danedri Herbert, cites — the one in quotation marks above — is accurate. The definition of “enforced” is to cause something to happen by force. It is true that laws remain on the books in Fremont, Nebraska, and Valley Park, Missouri, but both towns told ProPublica that officials have never attempted to penalize anyone for not following the law. There are thousands of statutes on the books in the U.S. that are not enforced. (See this humorous assemblage of statutes — including an Arizona prohibition on donkeys sleeping in bathtubs — that continue to exist but do not generate any prosecutions or punishments. In other words, they are not enforced.)

In both Fremont and Valley Park, the laws that survived court challenges were emaciated versions of the original ordinances. Both first sought to punish employers and landlords for doing business with undocumented immigrants. In Valley Park, all that remained after court challenges was a provision making it illegal to “knowingly” hire illegal immigrants — something the story noted was already illegal under federal law. The city attorney in Valley Park stated that he has no memory of anyone being targeted under the law and, even if someone had been arrested, he likely would have refused to prosecute them. Kobach’s response to this is included in the story.

In Fremont, the portion of the law that remains on the books requires renters to fill out an application for a permit to ensure their citizenship status. But the form Kobach created and that was approved by the court does not collect enough information to verify citizenship status. The city has thus never successfully checked the citizenship status of any renter in the town and has never penalized anyone for violating the law. The city simply keeps the digital forms, but reports that it has “no future plans” to use them. Kobach was asked to comment on this in the list of emailed questions but did not respond.

Kobach’s statement: The narrative — Kris Kobach went to these towns to persuade them to adopt the ordinances stopping illegal immigration. In every single case, all four towns had adopted or voted on the ordinance before anyone contacted him to help defend them in court.

Kobach’s statement distorts what was reported. ProPublica’s article did not assert that he initiated discussion of these ordinances (with the exception of in Albertville, Alabama, where an ordinance never passed). What we did state was that Kobach substantially rewrote the ordinances in Hazleton, Pennsylvania, Valley Park and Fremont and that he made rosy predictions about their chances of legal success. (We did not claim he authored the ordinance in Farmers Branch, Texas.) His involvement in rewriting the legislation is a matter of public record; many of the changes he made are specifically enumerated in court filings. Kobach has discussed his involvement in interviews on TV and on the radio. Moreover, Kobach specifically described to the Kansas City Star reporters his input, saying, “at the end of the day, all four ordinances were ones that I had drafted or corrected or amended.” As he put it in a comment about the Fremont ordinance: “I helped them get the wording exactly right so that we could defend it well.”

Kobach was given ample opportunity to comment on the timing of his hiring in all of these cities, and on the extent of his involvement in writing the legislation. But at moments, he seemed fuzzy on the details. He said, “I can’t remember the chronology of Valley Park — if I was brought in after the suit, after they had already been sued, or not… And then in Fremont, Fremont was a little bit different.”

Kobach’s statement: The article attempts to create the false impression that the laws Kobach drafted have all been struck down. Arizona the Lawful [sic] Arizona Workers Act, which Kobach helped draft, went all the way to the United States Supreme Court and was approved. That law requires all Arizona employers to use e-Verify.

ProPublica’s article made no blanket assertion about every piece of legislation Kobach has ever helped write and it did not mention the Legal Arizona Workers Act. The article focused on the four instances in which Kobach was hired to defend towns that had passed immigration ordinances.

Kobach’s statement: “SB 1070, the ‘show me your papers’ law, which was passed in 2010 before being largely overturned by the Supreme Court….” This sentence is misleading. The central provision of the law, which directed police officers to check immigration status of people they stop where reasonable suspicion exists that the person is in the country illegally, was approved by the United States Supreme Court. The parts of the law that were struck down were relatively minor and were rarely mentioned in the media.

The Supreme Court ruling and the various settlements that followed reduced much of the power of the law. The Los Angeles Times concluded that the law had “pulled the last set of teeth from what was once the nation’s most fearsome immigration law.” The New York Times offered a more equivocal view, writing that “the Supreme Court struck down three central sections of Arizona’s law, which had been regarded by opponents as the most harsh. In allowing the ‘show-me-your-papers’ provision to stand, the court accepted, for the time being at least, Arizona’s word that police officers would not engage in racial profiling as they put it into practice.” But the hometown Arizona Republic called the Supreme Court decision “a largely symbolic victory” for its proponents.

Kobach’s statement: The article implies that Hazleton passed its ordinance because the mayor was upset about the increasing Hispanic population. That is false. The mayor never said that. It was prompted [by] rising gang [sic] involving illegal alien gangs like MS-13 and a high-profile murder involving an illegal alien and the cost to the city of illegal immigration.

Hazleton’s then-mayor, Lou Barletta, told ProPublica in an interview (which was recorded with his consent) that his concerns extended far beyond gang activity. He cited impacts on the local hospital, schools and city workers because of a depleted tax base and a newly Spanish-speaking population the city was not prepared to serve. All of this occurred as a result of the increase in Hispanic population. We think our article fairly distilled his comments.

ProPublica also traveled to Hazleton and spoke with several city leaders. One former city official complained of the town’s increasingly Hispanic identity, and the failure of these new residents to “assimilate” with the town’s existing population. He referred, repeatedly, to the white citizens as “Hazletonians” while referring to the Hispanic citizens by their countries of origin.

Kobach’s statement: The article implies that Hazelton’s financial distress was somehow caused by litigation over the ordinance. The city was in distress prior to the ordinance, and indeed, the ordinance was, in part, prompted by a desire to reduce the cost imposed on the city by illegal immigration. Even the ACLU’s attorney fees the city paid were a relatively small portion of the debts faced by the city.

The article did not assert that the $1.4 million paid to the ACLU caused Hazelton to tumble into receivership. It explicitly noted that city officials deny that the lawsuit caused the bankruptcy. It’s also worth recapping what Kobach himself wrote at the time in a legal filing (which was noted in the article) — that being forced to pay the ACLU’s fees “would likely be the straw that breaks the camel’s back and drives the city into bankruptcy and Act 47 receivership.” At the time that the city was ordered to pay the ACLU’s fees, records show it had an annual budget of $9.5 million and just over $9 million in debt. Readers can draw their own conclusions as to how onerous a bill for $1.4 million was under those circumstances.

Kobach’s statement: The story did not include interviews from city council members in Farmer’s Branch who viewed the ordinance favorably. Instead, the report quotes only Phelps, who was opposed to the ordinance. The majority of the governing body was in favor of the ordinance (obviously).

It is correct that the most of the governing bodies cited in the article voted in favor of the anti-immigration ordinances. (The lone exception is Fremont, whose city council voted the measure down only to see citizens vote it in as a ballot initiative two years later.) What we emphasized is that some government officials now feel Kobach offered excessively optimistic predictions or even misled them, not that they felt that way at the time. ProPublica interviewed multiple people in Farmers Branch and the quotes in the article reflect the balance of opinion reflected in our interviews.

Kobach’s statement: The first favorable statement in the article is buried in paragraph 14.

Again, the balance of statements simply reflects the balance of comments and feelings of multiple city officials, including many who felt duped and whose budgets were depleted by this litigation. To represent the findings otherwise would not have been true to the reporting.

Kobach’s statement: Did anyone contact the Immigration Reform Law Institute or the Federation for American Immigration Reform?

Yes. The organizations confirmed that he worked for them and that he had been compensated by them. Further, we asked Kobach multiple questions about his work for FAIR and IRLI, and he chose not to respond to them.

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