Johnson County may prove decisive in handing Kansas Secretary of State Kris Kobach the GOP nomination for governor after the conservative firebrand increased his lead over Gov. Jeff Colyer on Tuesday in the closest primary race in Kansas history.
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Colyer, a plastic surgeon from Overland Park, won his home county on Election Day, but the county failed to help him close the gap on Kobach when it tallied its final 1,451 ballots.
Kobach picked up 325 votes in Johnson County after provisional ballots were included, while Colyer picked up 301. The results were certified by the Johnson County Board of Canvassers, boosting Kobach’s chances of securing the Republican nomination to take on Democratic candidate Laura Kelly in November’s general election.
In a press conference around 5:30 p.m., Kobach didn’t declare victory. But he did say the trend of votes was favoring his campaign.
Kobach thanked the counties of Sedgwick (which Kobach said bumped the lead by 94 votes), Johnson (which increased the lead by 24) and Pottawatomie (which Kobach said increased the lead by 55).
“I want to thank, once again, the voters of Kansas generally,” Kobach said. “But in particular the voters of those counties for placing their confidence in us as we make the case for why Kansas should elect me governor and Wink Hartman lieutenant governor.”
Kobach said he expected the trend in the votes showing him leading will continue.
“As this trend continues I’m issuing a call to unity for all Republicans as we now gear up and start marching in the general election campaign,” Kobach said.
Colyer’s campaign had counted on making up more ground with Johnson County’s provisional ballots. His failure to do better seemed to disappoint campaign staffers on hand in Olathe to watch the Board of Canvassers’ meeting.
“It is what it is,” said Clay Barker, special assistant to Colyer and former executive director of the Kansas Republican Party.
Colyer announced a news conference at 7:30 p.m. in Topeka, fueling speculation that he’ll concede the race.
Kobach didn’t call on Colyer to concede, saying: “That’s up to him. I think at this point the numbers look very difficult, the way the trend is moving. But I certainly respect his decision if he wants to wait until Thursday.”
There are still outstanding provisional votes in the state, including in the counties of Wyandotte, Shawnee and Douglas. But Tuesday’s updated results mark a pivotal day for both campaigns.
The trailing campaign has until Friday to request a recount, according to the state’s director of elections. The deadline comes before six counties in Kansas will be done with their canvasses.
A recount was considered likely if the race continued to remain separated by just a few hundred votes. A legal challenge was also a possibility as the candidates’ two offices bickered over whether certain provisional votes should be counted.
An hour before the canvassing board began its meeting, Colyer’s legal team sent the board a letter arguing that 153 ballots that had been discarded because of mismatching signatures should be included in the county’s final vote tally.
Johnson County Election Commissioner Ronnie Metsker on Monday told the canvassing board, which is made up of county commissioners, that these ballots were primarily ballots where the voter’s spouse or parent had incorrectly signed a ballot instead of the voter.
The letter from Colyer’s lawyers argues that Kansas law does not require verification of signatures as a precondition for counting votes and that Kansas law.
“Absent clear evidence of actual fraud, Kansas takes a permissive view that places special emphasis on the right to vote and excuses a voter’s failure to follow requirements that do not seriously call into question the voter’s intent,” said Edward Greim, an attorney at the Kansas City-based Graves Garrett law firm.
Johnson County Commissioner Michael Ashcraft said that the policy of verifying signatures is longstanding when asked about the letter from Colyer’s lawyers shortly before he and the other members of the canvassing board began their 4 p.m. meeting.
“They make a good faith effort to do that. I hope it’s 100 percent, but I’m not a handwriting expert and I don’t review each one of them,” Ashcraft said. “But they do and they actually have, I think, three levels of review to verify. I hope it’s 100 percent. I suspect it’s pretty close to 100 percent.”
Ed Eilert, who chairs both the canvassing board and the county commission, also defended the policy.
“If you’re not going to match signatures, then I or you, could sign for 10 or 15 people. It doesn’t make sense to me,” said Eilert, who noted that he is not an attorney.
The letter from Colyer’s attorneys was sent the same day that a federal judge ruled that a similar New Hampshire law is unconstitutional under the 14th Amendment.
“The act of signing one’s name is often viewed as a rote task, a mechanical exercise yielding a fixed signature. A person’s signature, however, may vary for a variety of reasons, both intentional and unintentional,” U.S. District Judge Landya McCafferty said in the ruling.
The legal challenge against New Hampshire was brought by the American Civil Liberties Union on behalf of a 95-year-old woman who is legally blind.
Julie Ebenstein, the ACLU’s lead attorney in the case, said that the New Hampshire law disqualified 275 ballots in the 2016 election. She said the state did not give voters an opportunity to verify their identities before discarding their ballots.
“There was really no criteria or training for the local election official to make that determination,” she said in a phone call.
The ACLU defeated Kobach in another voting rights case this year when a federal judge ruled unconstitutional a Kansas law that required voters to provide proof of citizenship to register.
The letter is the clearest sign that Colyer was considering pursuing legal action either before or after a recount takes place.
Senate President Susan Wagle, a Kobach supporter, sent a warning tweet Tuesday afternoon, saying: “Democrats are hoping for a drawn-out litigation process because it’s the only way they can win this November. It’s time for the @KansasGOP to unite & back whoever comes out on top this week. Let’s keep Kansas red!”
Mark, an attorney and close friend of Kobach, criticized Colyer for pursuing the ballots’ inclusion when he attended Johnson County’s certification meeting.
“It’s disheartening that a sitting governor, without any of us seeing the ballots, seeing the signatures, that these folks have said they not only checked them, they didn’t just double-check them, they triple-checked them, and the vote and the signatures didn’t match. For the governor to think that those should be counted, it’s very disappointing as a citizen of Kansas to think he would advocate for them,” said Mark, the man who first introduced Kobach to President Donald Trump’s family.
Colyer had outpaced Kobach by 6 percentage points in Johnson County before the provisional ballots were tallied. The handful of votes Kobach picked up in the county Tuesday didn’t change that percentage, but may prove decisive in the outcome of the race.
Patrick Miller, a political scientist at the University of Kansas, said Colyer was more likely to close the gap with Kobach through provisional ballots than with a recount. That made a strong performance in Johnson County, Colyer’s home county and the most populous in the state, essential.
“Provisionals are more likely to change the votes than a recount,” Miller said. “He definitely does need a good showing there, for sure. If he does not do well with those Johnson County numbers, it’s hard to see him pulling through.”
Kobach had increased his lead over Colyer earlier on Tuesday after Sedgwick County increased his lead by 94 votes in the morning and smaller counties continued to process their provisional ballots.
Leavenworth County also certified its results Tuesday. Kobach picked up 34 additional votes from provisional ballots, while Colyer gained 25. In the end, Kobach won the county by 1,290 votes, or 17 percentage points.
Colyer’s supporters went into Tuesday convinced that the governor needed a strong performance in Johnson County to close the gap before he could pursue any legal remedies.
“I think Johnson County is crucial. There’s all of these irregularities and there’s all of these what-if’s and a bunch of things that I think are good legal arguments … but ultimately you’ve got to pick up votes,” said a Republican strategist who works in Kansas and supports Colyer.
The strategist said that if Colyer failed to narrow the margin the question of a recount “becomes a cost-benefit to the campaign because unfortunately in Kansas, you’ve got to pay for it.”
Miller said Republicans have a time cushion to figure out the winner because of the party’s registration advantage and independent Greg Orman’s entry into the race, which is expected to draw votes from Democratic nominee Laura Kelly.
“They can afford a delay, whether it’s a recount or some court cases that from their perspective are hopefully resolved quickly — that’s not going to hamper them too much in the general,” Miller said. “If Colyer has the money to afford it, he certainly has the time. Why not exhaust the opportunity?”
The Wichita Eagle’s Dion Lefler and Jonathan Shorman contributed to this report