Crime & Courts

Does your vote count? Appeals court in Wichita for voting-machine case

Is voting rigged in Sedgwick County? Is there any way to prove it is or isn’t?

Those are the fundamental questions underlying a Kansas Court of Appeals case to be argued Tuesday morning in a special court session at Friends University in Wichita.

The appeals court is being asked to allow a recount of votes on audit tapes from voting machines to test the accuracy of the tallies reported by Sedgwick County Election Commissioner Tabitha Lehman.

Wichita State University statistician Beth Clarkson has tried for seven years to gain access to the tapes. Her request was denied by Lehman and the denial was upheld in district court.

Lehman and Sedgwick County say that there is no problem with the votes and releasing the tapes would risk compromising the secrecy of people’s ballots.

Tuesday’s appeal arguments will feature two prominent Wichita attorneys.

Randy Rathbun, a former U.S. attorney for Kansas, will argue the case on behalf of Clarkson, who originally represented herself in court. Assistant County Counselor Michael North will represent Lehman and the election office.

Clarkson, who holds a doctorate in mathematics and works as a statistician for WSU’s National Institute for Aviation Research, has done several statistical analyses of past elections and unearthed what she believes to be tampering with the electronic machinery that counts and tallies votes.

“There are statistical indications that are consistent with concerns about deliberate manipulation,” Clarkson said. “Followed by the fact that there’s no transparency in the process. ... We’re not allowed to see the records or do any checking, we’re basically supposed to accept it on faith that everybody’s doing their job and if everybody does their job there won’t be any problems.”

Clarkson said she doesn’t really suspect Lehman and her staff have tampered with the vote.

“But we’re also expected to believe that about all the employees of the company that produces the machines and software,” she said. “And we’re supposed to believe the security is tight enough that nobody can hack in and alter the results, which is pretty well proven to be a false hope. It’s surprisingly easy to do that with voting machines.”

The county’s response?

“They (the paper tapes) are never counted as votes in elections but are used simply as a device by voters to visually confirm that he or she voted as intended,” North said. “They are not ballots and they are not votes because they aren’t counted.”

The county also argues that Clarkson’s request for a recount is a thinly veiled attempt to work around an earlier court decision that denied her access to the records under the Kansas Open Records Act.

Specifically, Clarkson is seeking access to records from the 2014 election – that’s how long it’s taken the case to wend its way through the court system.

The larger question is whether the paper tapes can ever be used by anyone to check the accuracy of electronic voting equipment.

The printed tapes can be briefly viewed by individual voters through a plastic window on the voting machine during voting.

But the voting information rolls out of view when the voter finalizes his or her ballot. The tapes are catalogued and stored, and nobody ever looks at them again.

North has said in the county’s court briefs that the tapes aren’t ballots and can’t be used for recounts under any circumstances.

That analysis parallels regulations from Secretary of State Kris Kobach banning access to the tapes.

One of Clarkson’s lawyers, Benjamin Carmichael, argued that a district court erred last year in ruling the tapes couldn’t be used for a recount.

“That decision has led to elections in Sedgwick County being unverifiable in any meaningful way,” Carmichael said in court briefs.

The only time the paper tapes were used to back check a Sedgwick County election was in 2006, when candidate Walt Chappell challenged a close loss to Brenda Landwehr in a race for a seat in the state Legislature. A judge ordered that the tape records be counted, but shut down the recount when a sampling of the paper tapes matched the electronic totals from the machines exactly.

On Tuesday, Rathbun and North will be given 15 minutes each to make their cases. In general, most of the oral argument time is taken by the judges to question both lawyers on points that have been raised as the case made its way through the system.

The oral arguments will be heard by a three-judge panel: Appeals judges G. Gordon Atcheson and Michael Buser will come down from Topeka while a local senior district judge, James Burgess, will join the panel for the cases on the docket Tuesday.

Ordinarily, the appeals court would hold oral arguments in the state courtroom across the street from the Capitol in Topeka.

But the judges do occasionally take the court on the road as part of a public education campaign seeking to demystify the roles and practices of the judiciary.

Tuesday’s Wichita session is being held in conjunction with Constitution Day.

Although they cannot comment on pending cases, the judges will answer students’ questions about the courts, the law and the legal profession, said Doug Weller, a spokesman for the court.

When they travel, the judges generally try to hear cases of local interest. A hearing last year on Clarkson’s case packed a Sedgwick County district courtroom to standing room only.

Dion Lefler: 316-268-6527, @DionKansas

If you go

What: A three-judge panel of the Kansas Court of Appeals will hear oral arguments in five cases, including a well-known case in which Wichita State University statistician Beth Clarkson is seeking access to voting machine records to check for irregularities in vote counting. Between cases, judges will answer questions about the law and the legal profession.

When: 9 a.m. and 1:30 p.m. Tuesday. The Clarkson case will be the third case in the morning docket.

Where: Marriage and Family Therapy Building, Friends University, 2100 W. University Ave., Wichita

For more information: Call the Kansas Judicial Branch at 785-296-2256.

Other cases

In addition to the voting case, the three-judge panel of the Kansas Court of Appeals will also hear arguments in these cases Tuesday at Friends University. All are open to the public.

Care and Treatment of Valdie T. Barnett: The state is appealing the release of a former inmate of the Sexual Predator Treatment Program at Larned State Hospital.

Barnett was committed to indefinite confinement in the lockdown psychological treatment program, but released after the appeals court ruled the mental-health professional who evaluated him was unqualified.

Issues on appeal include whether an Ellsworth County district judge misapplied the appellate ruling when he released Barnett, and whether Barnett can be re-evaluated since he has already been released.

State of Kansas v. Catherine Lynn Deaver: Deaver is appealing a Butler County court conviction for possession of methamphetamines, arguing that a state trooper unlawfully searched her car and that evidence from the search should have been excluded from her trial.

State of Kansas v. Hershel A. Kemp: The state is appealing the dismissal of three sex offense counts against Kemp.

Although Kemp was convicted of six felony sex offenses, a Lyon County judge dismissed three charges because it was unclear whether the jury had reached a unanimous verdict on those counts.

Kemp is also appealing his conviction, arguing there were improprieties in the testimony, evidence and closing arguments at his trial.

Leigh Ann Ziebart v. Chad Ziebart: This case is an appeal of a child-custody battle between divorced parents in Meade County, in which the district court granted primary custody to the father.

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