Kansas Republican governor primary turns to provisional ballots, one county at a time

by Madeline Fox, Andrea Tudhop and Stephan Bisaha, Kansas News Service

The counting, sorting and contesting of ballots in the Republican primary for Kansas governor continued on Monday. It could be just the beginning.

Incumbent Gov. Jeff Colyer last week began criticizing his rival for the nomination, Kansas Secretary of State Kris Kobach, for how he was overseeing the election and how he had schooled local election officials on provisional votes.

Kobach gave in to Colyer’s demand last week to step aside from that part of his secretary of state duties. Colyer, meanwhile, continued to lay the groundwork for challenging the results of the nailbiter in court.

Kobach’s slim lead remained, and remained around 200 votes, on Monday. But thousands of ballots were still uncounted Monday, including 1,176 in Johnson County due to be tallied late Tuesday afternoon. Counties aren’t required to submit their final totals until Aug. 20.

Monday morning, as canvassers across the state began to rule on which provisional ballots deserved counting, the governor’s legal counsel issued an opinion arguing for counting more of them. Provisional ballots are those set aside in a polling place when a dispute arises about whether someone was eligible to vote.

For instance, voters who start Election Day in Kansas as independent or unaffiliated can cast ballots in a primary. But state election law only allows them to do so if they first fill out paperwork at a polling place declaring themselves a member of a party.

Sometimes, the governor’s lawyer noted in his opinion, poll workers don’t sort through that party declaration process. So the voter casts a provisional primary ballot without joining a party.

Brent Lau, the chief counsel to the governor’s office, said canvassers examining which provisional ballots to include must “look to the intent of the voter to correct this technical error by the poll worker and count the primary vote.”

That put a slightly different spin on interpreting the law than word Kobach’s office had sent to local officials. His office has stressed that a voter who wasn’t registered with a party by the time they cast a ballot should not participate in the primary.

In Johnson County, canvassers on Monday chose to exclude some of those ballots. It also added to the to-be-counted pile 57 votes of previously independent voters who did register with a party on the day of the primary.

Johnson County Election Commission Ronnie Metsker said Monday all of those ballots would be accepted.

“I don’t think there’s an issue. This is a non-story,” Metsker said. “The voters wanted to vote, and they were allowed to vote and their votes counted.”

Trailing by a razor-thin margin, Colyer’s chances could conceivably benefit if a larger number of votes is added to the total.

While Kobach recused himself from the certification of the election, he left the job to his chief deputy, Eric Rucker. Colyer had called for a hand-off of that work to Attorney General Derek Schmidt. The state’s director of elections, Bryan Caskey, has said state law doesn’t have a provision for a secretary of state’s recusal.

Schmidt is anticipating possible legal challenges to the vote count. He wrote county election officials telling them to keep “any paper files, notes, or electronic data related in any way” to the election. Under Kansas law, counties are already required to save ballots for statewide races for nearly two years after the election.

The deadline for requesting a recount comes before all 105 counties are required to certify their results. So Colyer or Kobach could end up demanding, and paying for, a recount that might actually wipe away their apparent win.

County election officials started counting their provisional ballots — about 9,000 scattered across the state — Monday. That included nearly three in four counties in the state, including population centers Johnson and Sedgwick counties. Both had about 1,800 provisional ballots, far more than any other county in the state. Six counties will wait until next Monday to start their canvass.

Closely watched canvassing scenes began to play out across the state Monday morning.

In McPherson County, for example, representatives for the Kobach and Colyer campaigns watched as County Clerk Hollie Melroy read an updated tally with provisional ballots included.

Out 101 provisional ballots in that central Kansas county, 52 were approved. Those that were denied were bundled and wrapped in a pink sheet in preparation for storage. Most were denied was because the voters had not registered in time for the election.

The final count in McPherson gave Colyer 1,781 votes and Kobach 1,659. After making notes, the representatives for the campaigns shuffled out of the room as Melroy continued to read the updated results for the other elections.

In more populous Sedgwick County, canvassers OK’d 1,300 ballots and tossed out about 900. But 14 ballots drew the most scrutiny, those cast by unaffiliated voters who hadn’t filled out paperwork correctly. Canvassers ultimately voted to count those ballots.

Caskey says the process is similar across all 105 counties. County election officials sit down at a meeting that’s open to the public and go through each ballot — often pre-sorted by what issue landed them in the provisional pile — and make a call on whether each vote should count based on Kansas law.

The Colyer campaign announced Friday that it would have a representative at all 105 county canvasses to monitor the process. Colyer spokesman Kendall Marr said it lined up someone to observe each count.

Some provisional ballots end up only being partially counted. In Johnson County, for example, voters who cast ballots at the wrong polling place only counted in statewide races — those parts of the ballot that don’t change from one location to the next.

Other ballots were tossed aside. For instance again in Johnson County, 900 ballots won’t be counted because people registered in one party insisted in voting in another party’s primary. While an independent voter can sign up with a party on primary day, a Democrat can’t switch to Republican, or vice versa. Others were excluded because voters lacked photo identification or their signatures didn’t match records on file.

“The stakes are high,” Metsker said. “I don’t recall in my lifetime a primary race where the stakes seemed to be this high. A lot lies within our office to get this right.”

Nadya Faulx of KMUW contributed to this report.
Madeline Fox is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @maddycfox.
Stephan Bisaha reports on education for KMUW in Wichita and the Kansas News Service. Follow him on @SteveBisaha.
Andrea Tudhope reports for KCUR in Kansas City.
Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to the original post.

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More statewide vote totals may change; governor concerned about counting unaffiliated ballots

As provisional votes are counted today in Johnson County and Sedgwick County, Gov. Jeff Colyer’s chief legal counsel has issued an opinion on unaffiliated voters casting ballots.

This week, all counties in Kansas will be considering whether to count provisional ballots. Wyandotte County’s Board of Canvassers will meet at 9 a.m. Thursday, Aug. 16, at the Election Office, 850 State Ave., Kansas City, Kansas.

Gov. Jeff Colyer and challenger Kris Kobach both had about 41 percent of the vote statewide in a very close contest for the GOP nomination for governor.

The governor’s chief legal counsel sent his opinion to all county election officials in the state.

The opinion stated that, “Kansas law provides that an unaffiliated voter must be permitted to affiliate with a party on primary election day and vote in a party’s primary. K.S.A. 25-3301(c). However, sometimes when an unaffiliated voter seeks to affiliate and vote in a party primary, a poll worker (often a volunteer) simply instructs the unaffiliated voter to fill out a provisional party ballot rather than a party affiliation statement. Kansas law requires canvassers to look to the intent of the voter to correct this technical error by the poll worker and count the primary vote.”

Poll worker errors should be disregarded by the county canvassing board and the votes should be counted, according to the statement from the governor’s attorney, Brant M. Laue.

“Specifically, Kansas law expressly provides that such poll worker errors should be disregarded by the county canvassing board: “No ballot, or any portion thereof, shall be invalidated by any technical error unless it is impossible to determine the voter’s intention. Determination of the voter’s intention shall rest in the discretion of the board canvassing in the case of a canvass.” K.S.A. 25-3002(b)(1). This guiding principle has special importance in elections for governor: “[Even though] provisions of law may not have been fully complied with in noticing and conducting the election . . . the real will of the people may not be defeated by any technical irregularity of any officer.” K.S.A. 25-702(b),” the governor’s attorney stated.

There is a possibility this election could end up in court, and on Friday, Kansas Attorney General Derek Schmidt advised election officials in all counties to preserve all records related in any way to the primary election.

On Friday, Kansas Attorney General Derek Schmidt ask election officials to preserve all records.

“Despite the unusual circumstances of this close gubernatorial election, I know all county election officials are focused intently on performing their duties in a manner that ensures confidence in the eventual outcome of the election,” Schmidt said. “To assist with that, I am issuing this reminder of their duty to maintain all potentially relevant records. This is a common step when litigation is anticipated. I suspect local officials already would have done this as a matter of course, but as the state’s chief legal officer, and because of the obvious statewide importance of any potential litigation related to this election, I felt it prudent to provide this clear guidance in a manner that is uniform statewide so there can be no confusion or misunderstanding.”


Kobach steps aside on vote count in GOP Kansas governor primary with Colyer

by Madeline Fox and Scott Canon, Kansas News Service
Note: This story has been updated to reflect new developments. Around 6 p.m. Friday, the secretary of state’s primary election results webpage was showing Kobach with a 110-vote lead over Colyer, a lead that was less than earlier in the day, after mail ballots were counted Friday afternoon.

On Wednesday, the contenders in the Republican race for governor pledged to back the ultimate winner and to make sure their photo-finish primary wouldn’t stall any general election campaign push.

Come Thursday, incumbent Gov. Jeff Colyer made clear that he thought his opponent and state election overseer, Secretary of State Kris Kobach, was exactly the wrong guy to be certifying the results.

Late Thursday night on cable TV, Kobach responded that any such recusal would be only symbolic. After all, he argued, the secretary of state really just reports the results that come in from local officials in each of the 105 counties in Kansas.

But, yes, he told CNN’s Chris Cuomo, if Colyer insists on someone else refereeing the vote count — “he really doesn’t understand the process” — then somebody else can run the official certification.

By Friday, the two deeply conservative Republicans found increasing fault with how the other was reacting to a race where more than 311,000 ballots were cast and Kobach led by just 121 votes. That accounted for differences in what the state had initially reported and results from two counties.

The secretary of state’s office said it would update the numbers Friday to reflect mail-in ballots.

On Friday afternoon, Kobach grudgingly and officially relinquished his role in monitoring the election results.

“It is in the best interests of the citizens of Kansas,” he wrote to Colyer, “that I permit another to perform the duties of the secretary of state until the conclusion of the 2018 primary election process.”

Colyer had called on him to hand off that work to Attorney General Derek Schmidt. Instead, Kobach gave the task to his assistant secretary of state, Eric Rucker. Rucker has been a deputy to Kobach through his two terms in office. He also worked for a Kobach predecessor. Colyer fired back through a spokesman that Rucker was the wrong choice because he answers to Kobach.

That official recusal came just hours after Colyer went on Fox News to make his case that Kobach’s role in sorting out the numbers could cast doubt on the the final count.

“Any sort of recusal, probably should have happened a long time ago,” the governor said on Fox. “It’s not an allegation of funny business. … (But) we want to make sure the law is followed, and that everybody who has voted, that they get their vote counted.”

The night before, Kobach dismissed Colyer’s argument even as he suggested he’d give in.

“There’s really no point in doing it,” he told CNN’s Chris Cuomo. “The secretary of state doesn’t actually have any role in the counting of provisional ballots or in any recount.”

State law required local officials to count any mail-in ballot postmarked by the day of the Tuesday primary and delivered by Friday.

In addition, the count of thousands of more provisional ballots won’t begin until Monday and might stretch to Aug. 20.

Colyer sent an open letter to Kobach late Thursday urging his recusal from the state’s certification of the primary results. He argued that the secretary of state was already sending wrong information to local officials.

For instance, the governor accused Kobach’s office of “informing the public on national television” mid-week that all mail ballots had already been delivered. State law says any received by Friday can still be counted.

Voters who aren’t registered with a political party are allowed, by state law, to cast ballots in the Republican primary.

Colyer’s letter cited anecdotal evidence of such voters being forced to cast provisional ballots, but not given the voter registration paperwork as required by law. Provisional ballots are just that, provisional, and require special scrutiny before they can be tallied.

“As a consequence,” Colyer’s letter said, “such provisional ballots cast in the primary election must be construed as evidence of voter intent and must be counted.”

The number of provisional ballots appears to be higher this year than the last primary of a non-presidential election year. In 2014, when more than 350,000 votes were cast in the primary, there were only 6,333 provisional ballots. With a higher vote total this, 9,000 provisional ballots were cast. Typically, between 60 and 70 percent of provisional ballots pass muster and get counted.

Bryan Caskey, the state director of elections, said Friday morning he’d heard only news accounts of a possible recusal by Kobach — nothing directly from the secretary of state. Caskey said Kansas law spells out no contingency for a secretary of state stepping aside from the count.

Meanwhile, numbers from a handful of counties differed slightly from what the secretary of state had reported (actually trimming down Kobach’s already-tentative lead). Caskey said such adjustments happen every year.

“Election night is unofficial, we’ve preached that for decades,” he said. “It takes a close election for everyone to pay close attention to the process.”

After the counties certify their results — primary night numbers are unofficial — the governor (Colyer), the secretary of state (Kobach) and attorney general (Schmidt) make the results official. A meeting of the three is scheduled for Aug. 31.

“I have a handful of instances across the state, just like every other year, where what we have on election night doesn’t match what the county does,” Caskey said. “This is why we do the verification.”

In a news release early Friday afternoon, Colyer’s campaign said it would send representatives to election canvasses — the official certification of vote totals — to every county in the state. The campaign called the move “unprecedented.” Further suggesting the Colyer campaign is willing to contest the final tally, it announced the hiring of former U.S. Attorney Todd Graves. Now in private practice, he has specialized in election law.

“The efforts the past two days by the Secretary of State to discard valid ballots,” the campaign said in a statement, “has made it clear that we need counsel to ensure that all Kansans’ votes are counted.”

Peggy Lowe of KCUR contributed to this report.
Madeline Fox is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @maddycfox.
Scott Canon is digital editor of the Kansas News Service. You can reach him on Twitter @ScottCanon.

Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to the original post.
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