Kansas Secretary of State Kris Kobach said Wednesday that he has no plans to recuse himself from a recount process in the race for governor because any counting of ballots would take place at the county level.
“The recount thing is done on a county level, so the secretary of state does not actually participate directly in the recount,” Kobach said at a campaign event in Topeka after initial results showed him winning by fewer than 200 votes.
“The secretary of state’s office merely serves as a coordinating entity overseeing it all but not actually counting the votes,” Kobach said, contending that his role puts him at arm’s length from the actual recount.
No law requires Kobach to recuse himself, but legal and political experts said that he should do so to maintain trust in the election.
Kobach, the state’s top election official, led Gov. Jeff Colyer in the Republican primary by a mere 191 votes Wednesday morning after each of the state’s 105 counties had posted election returns after technical difficulties in Johnson County delayed results on election night.
Colyer has the right to request that Kobach’s office initiate a recount if he remains trailing after counties tabulate provisional ballots and mail-in ballots postmarked by the deadline.
He would also have to file a bond with Kobach’s office to cover the cost of a recount at a price set by Kobach. If a candidate wins following a recount, no action would be taken on the bond.
Mark Johnson, a Kansas City attorney with experience in election law, said Kobach’s role in setting the cost is the primary reason why he should recuse himself from the process. He said Kobach should cede this authority to a deputy.
“Secretary Kobach should not decide that. That is a conflict in my opinion. To that extent, the secretary is directly involved in the recount process… He could set the bond so high that no one could afford that,” said Johnson, a member of the that defeated Kobach in federal court earlier this year in a case that overturned a Kansas voting restriction.
Republican legislative leaders said Wednesday morning that a recount is almost certain and could possibly take weeks. The uncertainty facing the state drew comparisons from lawmakers and attorneys to the 2000 presidential election, which saw the U.S. Supreme Court halt a recount effort in Florida after several weeks.
Kobach acknowledged the process could drag on for an extended time period in Kansas if a recount is requested.
“If the margin is less than 10 votes or something extraordinarily close, I would expect any person to call for a recount,” Kobach said. “A recount would take a significant amount of time to do a recount statewide.”
Attorneys who work in the election field say Kobach should recuse himself from that process despite the absence of a law requiring it.
Rep. John Carmichael, a Wichita Democrat, said that said that “fairness would dictate that Mr. Kobach personally recuse himself from that process and allow another member of his staff, who is not a candidate, to oversee that process.”
Colyer’s campaign would have no legal recourse to force Kobach to recuse himself, according to Carmichael, an attorney who has provided election protection services to numerous national and state campaigns for two decades.
“My opinion is the recusal argument is a political argument as opposed to a legal argument,” Carmichael said. “He is the state’s chief election officer and there’s an inherent conflict of interest in that, but that’s the way the statute is written.”
Kobach said the concerns about his role are “endemic to having an elected secretary of state, but of course there are safeguards.” He pointed to the role of county officials and the fact that members of both parties would have a role in a recount.
Douglas County Clerk Jamie Shew confirmed that Kobach’s office may issue guidance to counties in a recount, but the process will be almost entirely overseen by local officials in the state’s 105 counties.
“There’s kind of a misperception that the secretary of state’s office administers the election when really the elections get administered at the county level,” Shew said.
Shew said that in many counties, including Douglas, the board of canvassers is made up of county commissioners who appear on the ballot.
“In my experience if there’s a close race, I’ve seen county commissioners do recuse themselves. Like my mom likes to say, perception is reality,” Shew said.
He also noted that the state is a long way from beginning a recount. Counties first must go through provisional ballots and mail-in ballots that were post-marked before Election Day.
Kobach’s office estimated that there were between 8,000 to 10,000 provisional ballots across the state that needed to be reviewed.
During his campaign event Topeka, Kobach said that both he and Colyer would be better off if his campaign ran “the baton down the course a little while” ahead of the eventual GOP nominee’s general election match-up with Democratic state Sen. Laura Kelly and independent Greg Orman.
“It is imperative that we begin running, understanding that this is a tentative victory,” Kobach said. “And that I am carrying the baton for this first week with the full knowledge that I may hand the baton to Jeff if the provisional ballots change the outcome.”
If Colyer goes onto lose by the current margin “it will actually be the closest loss for any gubernatorial incumbent candidate in any primary ever,” said Geoffrey Skelley, political analyst at the University of Virginia Center for Politics whose research dates back to the 19th Century.
Bob Beatty, a political scientist at Washburn University, called the situation unprecedented.
“He may not like this, but Colyer needs to be like Al Gore … and immediately appoint or ask representatives to be there for every stage of the process. He had representatives watching everything,” Beatty said.
Colyer indicated in a statement Wednesday morning that he had no intention of conceding the race, which remains too close to call before any provisional ballots have been counted.
“Given the historically close margin of the current tabulation, the presence of thousands of as yet uncounted provisional ballots and the extraordinary problems with the count, particularly in Johnson County, this election remains too close to call,” Colyer said in a statement.
“We are committed to ensuring that every legal vote is counted accurately throughout the canvassing process,” Colyer said.
Later that day, Colyer’s campaign sent out a fundraising email that emphasized that there would be no official winner in the race until the provisional ballots have been counted.
“Monitoring these efforts will take significant resources. All contribution levels have reset after the primary. Each person can contribution up to $2,000 or a couple can contribute $4,000,” the email said.
The email did not specifically reference the possibility of a recount after the provisional ballots are counted.
Rick Hasen, an election law expert at the University of California, Irvine School of Law, said in an email that “it would be good practice even if not required by state law for an election official to recuse from any recount or legal proceedings surrounding his or her own election efforts. A longstanding English and American tradition is that ‘no man should be a judge of his own case.’ That should apply here.”
Johnson said the process of conducting a recount is a public process; the public, the media and certainly the campaigns would pay close attention to the proceedings.
“Go back and look at the pictures of the Florida recount,” Johnson said, referencing the disputed Florida recount in the 2000 presidential election between George W. Bush and Al Gore. “It may look like that.”
On Wednesday morning, bleary-eyed Republicans gathered at a Topeka hotel for a unity breakfast. Although Colyer and Kobach did not attend, the governor’s race hung over the event.
Kansas Senate President Susan Wagle, a Wichita Republican, said there is “no question” a recount will take place.
“I think back to the days in Florida when the technology was different and George Bush had his first election and they were looking at those hanging chads and trying to count votes. I think with our new technology, we will have a governor here in a few days that we will all unite behind,” Wagle said.
Kansas House Speaker Ron Ryckman, an Overland Park Republican, acknowledged that some people felt frustration at Johnson County over its problems counting votes.
“When I first came to Topeka, I didn’t know that JoCo was a four-letter word. This morning, walking into this breakfast, I felt it again,” Ryckman said to laughs.
He indicated a resolution in the governor’s race could take weeks.
“We’re going to have a few days, maybe weeks ahead of us before we know our ultimate candidate for governor,” Ryckman said, adding that Republicans are committed to supporting that person.
The prolonged uncertainty for Republicans will benefit Democrats as the the general election approaches, said Dave Wasserman, an editor for The Cook Political Report, a nonpartisan publication that analyzes congressional and gubernatorial races.
Rep. Dan Hawkins, a Wichita Republican who supports Colyer, said the delay in crowning a nominee for governor won’t weaken the party heading into the general election. He noted that even if it takes one or two weeks or determine the winner, the general election is three months away.
Asked about Kobach’s role in a possible recount, Hawkins said that Kobach would not be “intimately involved to the point where he would have any effect on (the result), but it would be a good thing if he went ahead and recused himself”