Gov. Jeff Colyer’s campaign staff left Monday morning’s canvassing meeting in Johnson County with the belief that the state’s most populous county would be counting all unaffiliated voters who cast ballots in the primary for governor.
But it appears that Johnson County Election Commissioner Ronnie Metsker misspoke on the issue Monday morning, leading to confusion for the Colyer campaign and others about which ballots will be counted when Johnson County does its final vote tally 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 57 unaffiliated voters in Johnson County who were incorrectly told to cast provisional ballots would have their votes counted.
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.
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“That’s correct. We had one location where that happened,” Metsker replied. “These are citizens. We train them. We train them hard. There were a number of problems at that location.”
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 distinction affects 35 other ballots cast by unaffiliated voters who did not declare a party and won’t have their ballots counted.
The Johnson County Board of Canvassers voted unanimously Monday to fully accept 1,176 ballots based on Metsker’s recommendations.
The canvassing board, which is made up by the county’s commissioners, also voted to accept 275 ballots in part and to disregard 898 ballots for a variety of reasons. The majority of voters who will only have their ballots partially counted went to the wrong polling place on Election Day. Their votes for all statewide races, such as the primary for governor, will count.
The board will reconvene at 4 p.m. Tuesday to certify the county’s election results after the new ballots have been counted.
Colyer’s campaign raised concerns last week that unaffiliated voters who were incorrectly told to cast provisional ballots would not have their votes counted.
Kansas law allows unaffiliated voters to declare a party on the day of the primary to vote in either the Democratic or Republican primary.
Assistant Kansas Secretary of State Eric Rucker issued a guidance late Sunday night saying that if “if an unaffiliated voter does not complete a party affiliation document, that voter is not entitled to vote at a party primary election.”
Clay Barker, Colyer’s special assistant, took Metsker’s assurances at the Monday meeting 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.
Kobach’s spokeswoman, Danedri Herbert, contacted The Star shortly after the meeting to dispute that all of these ballots were being accepted.
“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 county commission, said that he believes 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 that those are mostly 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 issue also came up during Sedgwick County’s canvassing meeting. That county’s canvassing board voted to accept 14 ballots cast by unaffiliated voters who did not check a box marking party affiliation.
Rucker called Sedgwick County to object about the inclusion of the ballots immediately after the county’s vote, arguing about their legality with Sedgwick County Counselor Eric Yost.
The dispute could wind up in court.
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. Colyer’s campaign pointed back to this letter when asked for a comment about the confusion in Johnson County.
“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 in a letter on letterhead from the governor’s office.
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.
Among the 898 votes that were 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 couldnot be counted last week, which prompted Colyer to call on the state’s chiefelection official to recuse himself from the process.
An additional 59 people will not have their votes counted because they did notprovide photo ID as required by Kansas law. And 272 people tried to vote in theother 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.