Kobach, Colyer loyalists battle over which ballots will count in close governor race

Small numbers of ballots in Johnson and Sedgwick counties are at the center of dispute between the backers of Gov. Jeff Colyer and Kansas Secretary of State Kris Kobach in a primary race that may eventually be settled in court.

Kansas law allows unaffiliated voters to declare their party on Election Day and vote in the primary, but the supporters of the two Republican rivals disagree whether this law puts the burden on voters or poll workers to ensure the paperwork is properly completed.

And the state’s two largest counties don’t appear to be handling the issue uniformly.

Assistant Secretary of State Eric Rucker, the deputy whom Kobach has tapped to oversee vote counting in the historically close election, said in a news release Sunday night that “if an unaffiliated voter does not complete a party affiliation document, that voter is not entitled to vote at a party primary election.”

Rucker issued his release less than 12 hours before the bulk of the state’s counties, including its two most populous, were set to begin canvassing, a process that will determine whether thousands of provisional ballots count in a race where a few hundred votes separate the candidates.

Brant Laue, Colyer’s chief counsel, argued in a letter Monday morning that Kansas law requires counties to accept ballots from unaffiliated voters regardless of whether the registration switch was completed.

“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,” Laue said on letterhead from the governor’s office.

Both Johnson and Sedgwick counties voted to accept thousands of provisional ballots Monday, but a handful of ballots in each of the counties could be at the center of litigation if the primary fails to yield a clear winner after canvassing is completed.

Kobach saw his lead on Colyer grow to 206 votes by 5 p.m. as more than 60 smaller counties processed their provisional ballots.

Sedgwick and Johnson counties, which account for more than 40 percent of the state’s provisional ballots, will certify their new vote totals Tuesday.

Rucker called Sedgwick County to complain immediately after the county’s canvassing board voted to approve 14 ballots where an unaffiliated voter failed to check the box for party label. He argued with the county’s lawyer about the legality of their inclusion in the vote tally.

Confusion in JoCo

In Johnson County, Colyer’s campaign staff left a canvassing meeting thinking that the state’s most populous county would be counting all unaffiliated voters who cast ballots in governor primary.

But it appears that Johnson County Election Commissioner Ronnie Metsker misspoke on the issue, leading to confusion about which ballots will be counted when Johnson County does its final tally on Tuesday.

Metsker referred to questions about the status of unaffiliated voters who were wrongly told to cast provisional ballots at their polling places and said votes would be counted for 57 unaffiliated voters in Johnson County who were incorrectly told to cast provisional ballots.

After the meeting, The Star asked Metsker specifically whether this meant that voters who were told to cast provisional ballots instead of declaring a party would see their votes counted.

“That’s correct. We had one location where that happened,” Metsker replied.

Clay Barker, Colyer’s special assistant, took Metsker’s assurances as a sign that the county was not following Rucker’s guidance.

“It would appear to me that the county commissioners, with counsel from their elections commissioner and legal counsel, decided to ignore it and do what they’ve done in the past, which is count ballots because they show a poll worker’s mistake,” said Barker, an attorney who previously served as executive director of the Kansas Republican Party.

However, Metsker issued a clarification Monday afternoon saying the county would count only those unaffiliated voters who declared a party.

“This morning, the Board of County Canvassers voted to count 57 provisional ballots cast by unaffiliated voters who were mistakenly instructed to cast a provisional ballot on Election Day,” Metsker said in a statement provided by a county spokeswoman. “I recommended those provisional ballots be counted because those voters completed a voter registration application, which includes a party affiliation declaration, as a part of the provisional ballot process.”

The Johnson County Board of Canvassers voted unanimously Monday to fully accept 1,176 provisional ballots based on Metsker’s recommendations. The 57 ballots from unaffiliated voters that declared parties are part of that total.

But the board also voted unanimously to disregard 898 ballots for a variety of reasons, including 35 ballots for which a voter failed to declare a party.

Kobach’s spokeswoman, Danedri Herbert, contacted The Star shortly after the meeting to emphasize the distinction.

“I just think it’s important to understand the difference because other counties are now trying to follow Johnson County’s lead,” Herbert said.

Ed Eilert, who chairs the canvassing board and the Johnson County Commission, said he thought the distinction between which unaffiliated voters would count and which would not was clear at the meeting.

Regarding the 35 unaffiliated voters’ ballots that won’t count, Eilert said, most were mail-in ballots, according to his notes.

“There’s a place on there if you’re unaffiliated to mark the party and they didn’t,” Eilert said. “That’s the difference between the two.”

The board will reconvene at 4 p.m. Tuesday to certify the county’s election results after the new ballots have been counted.

The canvassing board, which is made up by the county’s commissioners, also voted to accept 275 ballots in part. Most of these ballots are from people who went to the wrong polling place on Election Day. Their votes for all statewide races, such as the primary for governor, will count.

Colyer’s campaign referred to Laue’s letter when asked about the 35 unaffiliated voters’ ballots that won’t be counted.

More scrutiny in Sedgwick County

The issue of unaffiliated voters received more scrutiny in Sedgwick County.

Sedgwick County Commissioner David Dennis said it would have been easy for voters to miss what he called the “tiny box” on the form.

And Sedgwick County Commissioner Jim Howell said the voters would have had to tell election workers which party they wanted to join to obtain a ballot. He also said he thinks the election officials at the polls should have checked that the form was completed before giving a ballot to the voter.

Tabitha Lehman, the county’s election commissioner, remained neutral on the issue of whether the votes should be counted. But she did say she trains poll workers not to advise voters on how to fill out the forms because she doesn’t want them to be seen as encouraging voters to affiliate with one party or another.

The confusion for voters was scorned by Cille King, a co-president for the League of Women Voters of Kansas.

If poll workers instructed the voter wrong, “I don’t think the voter should be penalized,” King said.

Other counties

In 11 other Kansas counties surveyed by The Star that sorted through provisional and mail-in votes Monday, there was no question that previously unaffiliated voters’ ballots would be counted.

Rick Piepho, the county clerk and election officer of Harvey County, said unaffiliated voters should declare a party simply by going through the provisional ballot process.

“On the provisional envelope — at least on ours — there’s a box on there that says I’m declaring such-and-such ... party and we have them declare on there, so when they’re signing the provisional envelope they’re also signing that declaration,” Piepho said.

Most poll workers in these smaller counties asked unaffiliated voters to fill out a voter affiliation card or a voter registration card to declare their party, and they were given a standard ballot to vote in that party’s primary, clerks said. A few voters were asked to vote provisionally, which clerks attributed to poll worker error, but those votes were counted.

“They had to fill out a card in order to be able to get a ballot,” McPherson County Clerk Hollie Melroy said.

Sonya Stohs, county clerk in Marshall County, said 18 unaffiliated voters at two polling places in her county were asked to fill out provisional ballots because of poll worker error, but they all counted.

Postmarks and other issues

Among the 898 votes thrown out Monday in Johnson County were four mail-in ballots that lacked a postmark or had an illegible postmark.

Kobach’s office advised counties that these types of ballots could not be counted last week, which prompted Colyer to call on the state’s chief election official to recuse himself from the process.

Votes won’t count for an additional 59 people who did not provide photo ID as required by Kansas law. And 272 people registered in one party tried to vote in the other party’s primary.

One voter died after casting a ballot, which prompted the election office to recommend the vote be treated as invalid.

“We only had one of those, thank God,” Metsker told the commissioners.

This story was originally published August 13, 2018 at 5:37 PM.