Government & Politics

Kobach deputy says unaffiliated voters can’t be counted; Colyer’s office disagrees

The deputy Kris Kobach has tapped to oversee the undecided election for governor has told vote counters to disregard certain votes as questions continue about which remaining ballots should count.

That guidance was quickly challenged by Gov. Jeff Colyer’s office as the feud between the two Republican candidates continues.

As county canvassing boards began to meet Monday to review provisional votes, Assistant Secretary of State Eric Rucker said in an email late Sunday that “there has been considerable public discussion regarding whether unaffiliated voters can participate in Kansas party primary elections.”

He then attached a series of legal instructions including that “if an unaffiliated voter does not complete a party affiliation document, that voter is not entitled to vote at a party primary election.”

Under Kansas law, unaffiliated voters are able to declare a party at the polls, and then vote in that party’s primary. Kansas law does not allow for open Republican and Democratic primaries.

Colyer’s campaign late last week voiced concerns about unaffiliated voters who were incorrectly told by poll workers to cast provisional ballots.

The governor’s office argued in a legal opinion sent to The Star Monday morning that “Kansas law requires canvassers to look to the intent of the voter” in cases where a poll worker incorrectly tells an unaffiliated voter to cast a provisional ballot, rather than to affiliate and then vote.

“Kansas law requires that provisional ballots cast by unaffiliated voters in a primary election be construed as evidence of voter intent and must be counted,” Brant Laue, the chief legal counsel of the governor’s office, said in the letter.

Kobach, the Kansas secretary of state, has a slim lead, 110 votes, over Colyer in the GOP primary for governor. Roughly 9,000 provisional ballots are spread across the state’s 105 counties. More than 40 percent of those ballots come from Johnson and Sedgwick counties, where Kobach has appointed the top election officials.

After initially resisting calls that he recuse himself from duties overseeing the election, Kobach eventually recused himself last week and named Rucker.

Colyer’s campaign also has alleged that “many Colyer voters had difficulties finding his name on the ballot, were forced to vote on provisional ballots, or were turned away outright for unknown reasons.”

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