Kansas Secretary of State Kris Kobach didn’t leave Birmingham Friday after offering testimony at a contentious U.S. Commission on Civil Rights briefing on the impact of restrictionist immigration laws like those enacted in Alabama and Arizona.
Instead, the nativist lawyer and author of the abovementioned bills, remained in the state to speak Saturday at an event hosted by Alabama’s Eagle Forum, a chapter of Phyllis Schlafly’s ultraconservative national organization.
Strolling in about 30 minutes after his speech was scheduled to start, a grinning Kobach was met with a standing ovation from the crowd of about 60 people – mostly senior citizens, and mostly white – who had assembled at a Marriott hotel near Birmingham to hear their champion speak.
In a 60-minute speech on “the Obama administration’s assault on states’ rights,” Kobach warned that the federal government is “turning its guns, metaphorically, directly upon the states.”
Kobach was a hit. He drew applause when he praised Alabama’s immigration law (which he authored) for going further than any other jn trying to force undocumented immigrants to leave, and got a laugh with the statement, “calling an illegal alien an undocumented immigrant is like calling a thief an undocumented owner.”
In one of the most insensitive moments of his speech, Kobach, who has pushed for strict voter ID laws despite evidence that they will disenfranchise some poor, rural, elderly and minority voters, also took on the Voting Rights Act of 1965, which outlawed poll taxes, literacy tests and other tactics designed to keep African Americans from casting ballots.
Flipping the 1965 law on its head, Kobach framed states singled out by the law for their repressive, discriminatory practices as the victims of a federal government that treats some states as “not equal” to others.
“Congress in 1965 said some states have a history of racial discrimination in voting, and so therefore these states, before you can do anything to change your election law, must get Department of Justice approval,” he told the elderly, mostly white crowd. “Well, Alabama is one of those states that has to say, ‘Mother, may I’ before you can do anything to change your election laws.”
There’s a reason for that. The U.S. Commission on Civil Rights held its first-ever hearing in Montgomery, Ala., in 1958, to investigate allegations of voter registration practices designed to bar African Americans from registering to vote. At that time, the commissioners were forced to stay at Maxwell Air Force Base because all of the local hotels were segregated. The commission’s efforts at that time were stridently opposed by arch-segregationist and future Alabama Gov. George Wallace, who, like Kobach, cast Alabama and other states subject to scrutiny as victims of a tyrannical federal government.
Later in his speech, Kobach spoke admiringly of Arizona Gov. Jan Brewer’s plan to defy the administration’s Deferred Action for Childhood Arrivals initiative, which offers temporary work permits and waivers of deportations to certain undocumented immigrants who were brought into this country as children.
But in response to an audience question about nullification – the idea, popular among Southern segregationists in the 1960s, that states can defy federal laws they see as overreaching – Kobach walked a careful line.
Stating that nullification is “pretty clearly prohibited by the Supremacy Clause,” the ex-DOJ lawyer wondered aloud what would happen if the federal government did something that was “clearly unconstitutional?”
“If something was so unconstitutional that there would be no colorable argument as to its constitutionality, what about then? Does the Supremacy Clause still apply then?” he asked rhetorically.
“And that is perhaps one of the most interesting constitutional question of all time, and who knows, maybe the Supreme Court will be forced to answer that question.”