A Topeka polling place will have a special election for 432 voters after some received the wrong ballots in last week's Kansas primaries, officials decided Monday.
The Shawnee County Commission set the special election for Aug. 28, limiting it to voters who cast ballots in two precincts. They will be able to vote again in two Kansas House races and for Republican and Democratic party precinct committee positions. An attorney for the county called the action “unprecedented,” but commissioners saw it as the fairest way to resolve the problem.
The decision caused frustration for the top two candidates in a three-way contest for the Republican nomination in the 52nd House District. In the most recent count, they were separated by only 45 votes out of more than 4,000, so the special election could determine the winner. Meanwhile, they're losing several weeks of fundraising and campaigning for the November general election.
Shawnee County Elections Commissioner Elizabeth Ensley Deiter said the mix-up occurred because the supervising judge at the polling site, the Light of the World Christian Center, didn't follow election training in handing out ballots. Her office said up to 87 voters received the wrong ballots, but it couldn't pinpoint exactly which voters.
“There probably isn't the best solution before us right now, but what would seem the most fair is that these folks are entitled to vote again,” said Commissioner Mary Thomas, a Democrat. “We get a do-over.”
The county commission – meeting as a local Board of Canvassers to certify election results – had the choices of counting all the votes, counting none of them or holding a special election. Commissioner Ted Ensley was only Democratic candidate in the 52nd House District; he removed himself from the decision, and the commission replaced him for the certification.
State law says only that a county board of canvassers will do “what is necessary” to ensure an accurate vote count. Shawnee County Counselor Rich Eckert said his research showed that courts have ordered new elections in the past, but he couldn't find an instance of county canvassers doing it. The State Board of Canvassers – the governor, the attorney general and secretary of state – must formally certify counties' results, and Eckert said a court challenge is possible.
With a special election, state officials and the courts will at least have multiple sets of results to consider. The county would use paper ballots and count them by hand.
“I'm not saying that you can't do it,” Eckert said. “I'm saying it looks to be fairly unprecedented.”
Secretary of State Kris Kobach agreed the decision appears to be unprecedented but declined to comment further because he'll among the state officials reviewing the final results.
“My office is monitoring the situation very closely,” he said.
The ballot mix-up affected contested Republican primaries in both the 52nd and 56th House districts, but in the 56th, the winner, Janet Mitchell, of Topeka, received 80 percent of the vote, prevailing by more than 1,400 votes. Also, Deiter said, races for the parties' precinct committee spots could have been affected.
In the 52nd House District's Republican primary, the latest count showed Shanti Gandhi, a Topeka physician, had 1,476 votes, or almost 37 percent, compared to 1,431 votes, or almost 36 percent, for Dick Jones, a retired naval and U.S. State Department officer. The third candidate, attorney Scott Hesse, received 1,114 votes, or almost 28 percent. Those figures were adjusted by Deiter's office to remove any votes cast for the candidates in the two precincts affected by the ballot mix-up.
Gandhi told the canvassers that a special election would be unfair because Hesse's supporters – knowing now that he can't win – can switch candidates. But he later acknowledged to reporters that he doesn't see a good solution.
“It's very a very difficult situation to resolve,” he said. “My only point is, how did this happen?”
Jones took the decision in stride, joking, “If I win, it was the right decision.”