County officials wield the power as Colyer vs. Kobach race remains undecided

Local officials spread across Kansas’ 105 counties will exercise an incredible amount of power this week when they determine whether thousands of ballots should count in the closest primary race for governor in Kansas history.

The roughly 9,000 provisional ballots, awaiting rulings from county officials across the state, will likely decide whether Gov. Jeff Colyer or Secretary of State Kris Kobach emerges as the GOP’s standard-bearer in the fall.

More than 40 percent of the provisional ballots were cast in the state’s two most populous counties, Johnson and Sedgwick. The ballots have the power to swing the Kansas race in Colyer’s favor or solidify a victory for Kobach.

Kobach’s role as the state’s chief election official has heightened the scrutiny of the vote-counting process in the contentious race. After a backlash this week, Kobach announced Friday that Assistant Secretary of State Eric Rucker will oversee the process in his stead.

Colyer’s campaign plans to send representatives to all 105 canvassing board meetings to ensure the governor receives every possible vote. The candidates went into the weekend separated by a mere 110 votes.

The uncertainty about the winner has drawn comparisons to the standoff between George W. Bush and Al Gore during the 2000 presidential election, when a few hundred votes separated the two candidates in Florida.

Bryan Caskey, who works under Kobach as the state’s director of elections, said that usually 60 to 70 percent of provisional ballots end up being counted in the final tally.

“We always count more than we don’t count,” he said.

County election offices spent the days after the election separating provisional ballots into categories. Canvassing boards will then vote on whether to accept the ballots in each category.

Caskey said that a voter may be told to cast a provisional ballot for a variety of reasons, including the lack of a government-issued ID, but the most common reason is that voters changed their address and forgot to update their voter registration.

“That’s the No. 1 reason every election,” he said. A change of name could also force a voter to cast a provisional ballot on Election Day, he said.

Colyer’s campaign has identified specific categories of concern, including unaffiliated voters who were told to cast a provisional ballot.

Kansas voters must belong to a party to cast a primary ballot, but Kansas law allows a voter to declare a party at a polling place on Election Day.

Kendall Marr, Colyer’s spokesman, said he was first given a provisional ballot when he tried voting in Shawnee County.

Marr was listed as an unaffiliated voter and was told he could cast a provisional ballot. He then asked for a full ballot and registered as a Republican to vote in the primary.

“We’ve heard of quite a few people who had these issues,” Marr said. “We just want to make sure that all the votes are counted appropriately, that everyone had the chance to vote in the Republican primary that wished to.”

Hundreds of mail-in ballots also may be in legal limbo because of a dispute between Kobach’s office and Colyer’s campaign about whether they require a postmark to prove they were sent by the Election Day deadline.

“Our hope is that he gets a fair shake,” Marr said of Colyer. “I think there’s a few things we can do to ensure that, several of which we’ve included in our letter to the secretary of state.”

Robert Scherer, a 78-year-old unaffiliated voter, said he showed up to his Lawrence polling place to cast a ballot for Colyer.

“Mainly, it was a vote against Kobach,” he said.

Rather than register him as a Republican, the poll worker instructed him to cast a provisional ballot, Scherer said. He was confused by the instructions but went ahead with a poll worker’s guidance because there was a line of people behind him.

“I actually called the clerk’s office today and they said it should not have happened that way,” he said. “Now I guess it’s going to go to the county commission.”

Friday evening, Attorney General Derek Schmidt announced that he was instructing all counties to preserve election records for “any potential litigation related to this election.”

Kobach, who has frequently warned about voter fraud as a threat to election integrity, responded to Colyer in an open letter Friday afternoon, telling him that his accusations do “nothing to increase the public’s trust in the elections process and is beneath the office of governor.”

Kobach said that “local election officials have earned a reputation of providing Kansans with honest and accurate elections. I have every confidence that these local officials will carry out their obligations in this tradition of excellence.”

Where the votes are

The biggest prize is in Sedgwick County, where county officials will have to decide whether to count 1,900 provisional ballots.

As of Friday, Kobach led Colyer among Republican voters in the county by a margin of 9 percentage points. The county includes Wichita and its immediate suburbs.

Johnson County, the state’s most populous county, has 1,821 provisional ballots, according to the secretary of state’s office. Colyer led in the county among GOP voters by 6 percentage points as of Friday.

But political scientists warned against assuming that provisional ballots from counties that went strongly for either candidate on Election Day will necessarily hew to the Election Day trends in those counties.

“First off, different categories of ballots often go in different ways. … Election day vs. early vote vs. provisional. It’s not the same people whose votes end up in that category,” said Patrick Miller, a political scientist at the University of Kansas.

Democratic voters cast provisional ballots at a higher rate than other voters, political scientists say.

Both counties will hold their canvassing meetings on Monday. County commissioners will vote then on whether to include these ballots in the final vote count.

Seventy-five of the state’s 105 counties begin canvassing on Monday. Thursday also will be a key day, when Wyandotte, Douglas and Shawnee counties hold their canvassing meetings. More than 1,500 provisional ballots are spread among the three counties.

‘Shame on them’

On Friday afternoon, two election workers in Wyandotte County were sitting at computers with stacks of provisional ballots to review as Election Commissioner Bruce Newby watched.

An appointed board also was sorting 207 valid mail-in ballots that were postmarked before 7 p.m. on Election Day but not received at the election office until later.

Newby, a Kobach appointee, noted that three mail-in ballots arrived Wednesday but did not have postmarks.

“We can’t count those,” Newby said. “The thing that really ticks us off is that for all intents and purposes, it’s the Postal Service that’s disenfranchised that voter. And shame on them.”

Election workers checked the names, addresses and other information on the provisional ballot envelopes but did not see how the voters had voted. They were checking to make sure that the voter information on the provisional envelope matched the voter registration information and whether the ballots could be counted.

No names on the ballot envelopes were visible to a Star reporter and photographer.

Newby said five election workers had been working since Wednesday to go through roughly 400 provisional ballots. Traditionally, 70 percent of provisional ballots are counted as valid, he said. For this primary, that process ends Thursday morning, when the Wyandotte County Board of Canvassers meets.

Johnson County was engaged in the same process Friday but refused to allow The Star to observe, saying in an email late Friday that state law does not require the sorting process to be made public.

“You are asking to see work in progress by the election board and staff as they prepare for canvass,” said Jody Hanson, the county’s spokeswoman. “State statutes provide means for the canvassing process to be observed by poll agents and the public, but that does not cover all research and preparation work.”

Newby said he knew of at least one provisional ballot this year that won’t count because the person lived in Overland Park but insisted on voting in Wyandotte County.

“His ballot will not count because he wasn’t eligible to vote in Wyandotte County,” Newby said. When asked why the person was allowed to vote at all, he said, “We don’t turn anybody away who wants to vote. The bottom line is it’s a fundamental constitutional right and everyone has a right to vote whether they do it correctly or not.”

Caskey said voters must cast ballots in the county where they are registered. If a voter moves within a county but votes at the polling place for their old address, their vote in statewide races should count.

While workers checked the provisional ballots, Newby pointed to a long table that already had stacks of provisional ballots, sorted by various categories of reasons to review them.

He said he hoped his employees’ review would be finished by Friday evening. He then will personally review every provisional ballot envelope before Thursday and present a summary of those findings to the Board of Canvassers.

“I have a cover sheet that specifically tells them categories and I cite the law on that cover sheet,” Newby explained. “What’s the law that says this counts or doesn’t count? I read the law to them.”

Newby said the Board of Canvassers has the final say, and they don’t just rubber stamp what he tells them. They ask questions and determine which votes get counted for each candidate.

The canvassing process statewide will continue through Aug. 20, which could keep the results in doubt until nearly two weeks after Election Day. The deadline to certify the statewide results is Aug. 31, but that could be complicated if the counting process prompts legal fights.

“We’ve never had something like this in a governor’s race,” said Kelly Arnold, the Kansas Republican Party chair.

‘Lot of unknowns’

The provisional ballot numbers published on the secretary of state’s website are not broken up by party. Many of the ballots cast could be from Democratic voters and have no impact on the race between Colyer and Kobach.

“Typically, provisional ballots tend to break toward Democrats,” said Michael McDonald, a political scientist at the University of Florida. “Out of the Republican ones, I really don’t know. You might make some inference proportions might be related, but I think even that’s iffy because we just don’t know how these people would be voting.”

McDonald served as an expert witness on behalf of the American Civil Liberties Union when the organization successfully sued Kobach’s office to strike down a Kansas voting restriction in federal court earlier this year. He runs the United States Elections Project, a website that features statistical analysis of elections.

“I think there’s still a possibility that the vote could flip and there’s also the possibility during the canvassing that there’s other errors,” he said. “There’s a lot of unknowns here at this point. … All things equal, I’d rather be the candidate leading than trailing, but there’s no guarantee that Kobach will win this thing.”

Mark Lindeman, who teaches analysis of political data at Columbia University, said in an email that provisional ballots “often are cast by people who move a lot, which puts them at greater risk of registration problems; their political preferences tend to differ somewhat from other voters. In partisan elections, provisional ballots often are disproportionately Democratic.”

Rep. Ed Trimmer, a Winfield Democrat, also said that provisional ballots tend to favor Democratic candidates in general elections, which makes it difficult to predict their impact in a Republican primary.

“The provisional ballots, I think, tend to be for Democrats or moderate Republicans, who are less sticklers for the rules,” he said, based on his experience as a candidate. “My guess is it might favor Colyer, but I can’t say for sure.”

Down-ballot experiences

Trimmer has seen his races come down to provisional ballots twice, in 2012 and 2014.

He was leading narrowly in 2012 before provisional votes expanded his lead. Two years later, he trailed his GOP opponent before provisional ballots were counted.

“I was down by either six or seven votes after the preliminary,” Trimmer said. “And when the provisional ballots came in, I ended up by winning by 17.”

Trimmer said GOP voters should know that “this election is far from over” and “it’s very possible the election could shift.”

Each time, Trimmer attended the canvassing board meetings in Sumner and Cowley counties that determined the race. He said the county commissioners were exceedingly fair but that if he were Colyer, he’d “probably want to go to them to make sure everything’s going the way it should.”

In 2012, provisional ballots decided the winner in a Kansas House race when Republican Rep. Ken Corbet unseated Ann Mah, the incumbent Democrat from Topeka.

“I only won by 21 votes when the dust settled,” Corbet said.

Mah said she thought Corbet had a significant lead on election night.

“But then the morning after the election, we found out we were only 27 votes apart,” Mah said.

But before officials could call the race, Corbet and Mah had to wait while Douglas, Osage and Shawnee counties went through at least 131 provisional ballots to determine the true tally. Corbet, who is still in office, said he sat for hours watching county commissioners go through provisional ballots and decide whether to count them.

“And it drives you kinda crazy watching that all night,” Corbet said.

He said it was difficult to track in real time who was getting votes added to their total.

“I think it must have been one of the reporters that must have had a better track than I had,” Corbet said. “He said, ‘Congratulations. You won.’ ”

Hoping to gain some votes before the counties analyzed the provisional ballots and certified the results, Mah obtained lists of the provisional voters and set out to contact them, hoping to help them provide whatever information they needed to have their vote counted.

Kansas’ voter ID law had passed the previous year.

“I was really amazed how many people weren’t familiar with what the problems were with not having an ID,” Mah said.

But Kobach, who was in his first term as secretary of state, took Mah to court — first to keep her from getting the 131 names and then to stop her from contacting the voters. He lost both battles.

“So we had this big war over ‘How do you help people work through these problems?’” Mah said.

Mah said Kobach countersued in federal court to stop her.

“So we wound up in federal court, and the federal judge had a big old Kobach smack-down and said, ‘You have to give the names to her and to her opponent.’ ”