Appeals judges strongly questioned Tuesday whether there's a legitimate legal question for them to decide in Wichita statistician Beth Clarkson's quest to use audit tapes to test the accuracy of voting machines.
But the case could lead to an effort to change state law to make it easier for citizens to do accuracy tests on election equipment.
Clarkson, a statistician at Wichita State University, is asking the judges to order a recount of votes on ballot questions in the 2014 election, using the paper tapes generated by voting machines as voters cast their ballots.
At a Court of Appeals hearing Tuesday in Wichita, the lead judge on the three-judge panel repeatedly pressed Clarkson's lawyer, former U.S. Attorney Randy Rathbun, about whether a recount would have any effect, since the election was settled years ago.
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"The election result in all four contests have been certified," said Judge G. Gordon Atcheson. "The results of those can't be undone now.
"Why are we even thinking about this?"
Rathbun said that Clarkson, as a voter has an "absolute right to ask for a recount."
"The controversy is a controversy over whether electronic voting machines are accurate," he said.
Clarkson has said her statistical analyses of elections over several years have shown discrepancies indicating vote tampering.
While she wouldn't be able to look at the voting machine tapes herself, a hand recount by an election board would give her the data to prove or dismiss her suspicions.
Rathbun framed Clarkson's case as a request for a recount, after an earlier case where she represented herself in court and was denied access to the voting machine tapes under the Kansas Open Records Act.
Rathbun said the progression of events showed that Clarkson is “a brilliant statistician but a horrible lawyer.”
Assistant County Counselor Michael North argued the case on behalf of Sedgwick County Election Commissioner Tabitha Lehman, the official who originally denied Clarkson's recount request.
He said Clarkson's request was a "subterfuge" to get around the earlier open-records case.
He also said that the paper tapes haven't been proven to be any more accurate than the electronic tallies from the machines.
He said the tape printers are an optional add-on to the machines and are subject to paper jams and other problems.
"I've had bad experiences with printers," he said. "I suspect everybody else has."
He said the only purpose for the printout is for voters to check their ballot choices as they vote, to ensure the machine is accurately recording their selections. The tapes can be viewed through a small plastic window on the machine while a vote is being cast, but they roll forward to blank paper when the voter finishes.
The judges held the court session in a classroom at Friends University as an educational event in conjunction with Constitution Day and stuck around to answer questions – including Clarkson’s – after the arguments concluded.
“So you’re saying as a citizen, if I want to have more confidence in voting machines, I need to change Kansas laws?” she asked the judges.
“That is not uncommon,” answered Judge James Burgess. “We are bound to do what the Legislature says and sometimes it does take a legislative act to change it.”
Three Democratic state legislators – Sens. Oletha Faust-Goudeau and Lynn Rogers and Rep. Elizabeth Bishop – were at the court hearing.
Afterward, they had lunch with Clarkson to talk about ways to change the law if the court case goes against her.
What I’ve asked her to do is e-mail me a synopsis of exactly what she wants done,” Faust-Goudeau said. From that, she said, she will craft a bill to pre-file for the Legislature to take up when the next session begins in January.