Kansas Republican Governor Primary Turns to Provisional Ballots, One County At A Time

Aug 14, 2018
Originally published on August 27, 2018 12:01 pm

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.

Brant Laue, 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 Commissioner 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. Some were denied 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 ballot 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 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.”

This story originally misspelled the name of Brant Laue.

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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