Kansas lawmakers are vowing to take a fresh look at the state’s election laws after the slim margin between Kris Kobach and Jeff Colyer in the Republican race for governor exposed a sometimes creaky and subjective vote-counting system.
Even before the fight over the results of last week’s election, a nationwide review of state election systems ranked Kansas below nearly every other state.
Ballots improperly filled out, mail-in ballots without postmarks, even the vote of a person who later died – all landed in the laps of local election officials who made sometimes-conflicting decisions.
Two of the largest counties —Johnson and Sedgwick — took different approaches to counting some ballots cast by unaffiliated voters. For some, the deciding factor over whether their vote counted was what county they live in.
“I think when things get this close, it exposes maybe some of the problems we could hopefully address,” said Sen. John Skubal, an Overland Park Republican.
Gov. Colyer conceded to Secretary of State Kobach Tuesday night, a week after the polls closed. In the past seven days, the two men waged a battle over ballots in a conflict that seemed destined for a recount and lawsuit before Colyer’s sudden concession.
The result is no longer in doubt – Kobach is the Republican nominee. But interviews with more than a dozen lawmakers, officials and experts revealed a desire to clean up the state’s election laws, which they say are not always clear.
Kobach said Wednesday the state’s election system performed well. He did not suggest any issues for lawmakers to examine when asked.
Charles Stewart, director of the Massachusetts Institute of Technology Election Data and Science Lab, said he wasn’t intimately familiar with Kansas’ canvassing process, but said it’s essential to make sure laws are applied consistently across the state. In recounts, states often find that wasn’t the case, he said.
“That was the classic problem in Florida in 2000,” Stewart said.
Counties are sifting through roughly 9,000 provisional ballots this week and local officials will determine whether or not those votes will count. Johnson County and Sedgwick County have completed their process, but other large counties such as Shawnee, Douglas and Wyandotte will meet Thursday.
Counting provisional ballots in a razor-thin election like this one “increases the consequences of error,” said Myrna Pérez, director of the voting rights and elections project at the Brennan Center for Justice, part of the New York University School of Law.
“Close elections put a lot of strain on the system, require assessing and auditing and rechecking the counts and call into question any lack of uniformity or transparency,” Pérez said.
In addition, Johnson County took hours to report results after polls closed Aug. 7. The sun was up Wednesday morning before the county’s results were fully in – delays officials attributed to slow machines.
Many state lawmakers and other officials who watched the drama play out say Kansas’ election system needs adjustments in key areas. Although the Kobach-Colyer race is now resolved, they want changes to reduce the uncertainty and subjectivity that characterized the vote-counting process..
But Kansas’ director of elections, Bryan Caskey, said he was grateful the close race showcased the long effort election officials go through to count and certify results every year “whether the margin is 100 votes or 100,000 votes.”
“As long as people are involved in the process, mistakes are made, which is why we’re so careful to say, ‘Unofficial, unofficial, unofficial,’” Caskey said of election nights.
Kansas ranked lower than other states
Kansas election performance doesn’t rank high among states, according to the Massachusetts Institute of Technology. The state ranked 48th in MIT’s Election Performance Index in the 2016 election, which ranked all states and Washington, D.C.. Only Idaho, Oklahoma and California scored lower.
One troubling indicator, according to the index, is the number of provisional ballots cast in Kansas. About 3.3 percent of Kansas ballots were cast provisionally in 2016. Across the nation, that average rate was just 1.2 percent. That’s a problem because provisional ballots “put in play” a lot of votes that could be disputed in a recount, Stewart said.
Provisional ballots are cast when a voter’s eligibility is in doubt. Officials in each county then meet several days after the election to decide which of the sealed provisional ballots should be counted.
“I would say close elections are the reason why it’s good if you can figure out how not to have a lot of provisional ballots,” Stewart said.
Those undetermined votes create a problem Stewart calls “having a lot of paper on the table” after Election Day, which increases the work and potential conflict in a close election.
Kobach said the counting of provisional ballots showed there are “rules to the game” set up before the election and that it’s imperative the rules are followed.
“I’m very satisfied in terms of how things worked with the election process, setting aside the result,” Kobach said.
Because Kansas has more provisional ballots, it throws out more votes. Kansas threw out about 1.1 percent of total votes cast in 2016. The rest of the country tossed just 0.3 percent, on average.
Stewart suspected Kansas uses provisional ballots as a “fail-safe” option when poll workers encounter voters who have moved or requested an absentee ballot but showed up to their polling location anyway. He said both those uses could be argued justifiable. Even in those cases, Stewart said human error means provisional ballots that should be counted could be thrown out.
“So as a voter, you rarely want to be casting a provisional ballot,” Stewart said.
But Caskey said Kansas uses provisional ballots to make sure it captures votes and then counts every single one possible.
“Our policy is never turn anyone away,” Caskey said.
Micah Kubic, director of the ACLU of Kansas, said same-day voter registration could solve the need for many provisional ballots, along with expanding early voting. He also said same-day registration is likely to boost voter turnout.
“So much of the drama we’re seeing … all that stuff would be solved through Election Day registration,” Kubic said.
Kobach said the close election result demonstrated the need for voter identification and for voters to provide proof of citizenship documents in order to register to vote.
A federal judge has overturned the state’s proof of citizenship law after a federal trial where Kobach personally defended the requirement, though the state is appealing the decision.
“I also think this election, perhaps more than any other piece of evidence, makes the case for voter ID and proof of citizenship,” Kobach said.
Party affiliation problems in Kansas
Two of the state’s largest counties split this week on whether to count 49 ballots.
Sedgwick County’s canvassing board decided to approve 14 ballots cast by voters attempting to register with a political party who didn’t properly fill out a form. Johnson County rejected 35 ballots with the same problem.
In most statewide elections, 49 votes is a rounding error. But in the extremely close Colyer-Kobach race, every vote played a pivotal role.
Assistant Secretary of State Eric Rucker called Sedgwick County officials Monday to object after they decided to count 14 ballots from voters who didn’t properly affiliate with a party. Rucker took over election-related duties from Kobach, who recused himself.
Sen. Oletha Faust-Goudeau, a Wichita Democrat who attended Monday’s meeting of the Sedgwick County canvassing board, called for a person independent of the board who could provide advice on how to apply election law in counting ballots. The board is made up of county commissioners.
She acknowledged the commissioners are briefed by Sedgwick County Election Commissioner Tabitha Lehman, but questioned whether that’s enough.
“It’s solely left up to them to make that final decision whether we count those votes or not,” Faust-Goudeau said.
The day after their canvass, Sedgwick County commissioners discussed various problems that arose and proposed fixes to be added to the county’s legislative requests.
Commission Chairman David Dennis criticized the card that unaffiliated voters have to fill out to declare their party on Election Day, saying the boxes that have to be checked to show party affiliation are too small and too easy to miss.
“If you missed it, your vote might not count because we’ve got (a form with) a little tiny line with little tiny boxes in it,” Dennis said.
By consensus, the commission decided to ask the secretary of state’s office to revise the form.
Counties also tossed out ballots for those who belonged to one party but showed up to the polls and asked for a ballot for the other party. Kansas is a closed primary state, and voters who want to switch parties must do so more than two months before the primary in which they want to vote.
Even so, “They should just tell them, ‘You can’t do that,’” said Senate Minority Leader Anthony Hensley, D-Topeka. “And they shouldn’t have been giving them provisional ballots.”
Caskey said that happens because the state doesn’t turn away provisional voters.
“So if someone comes in and demands a ballot and they’re not registered or they’re not registered with the right party, we still give them a ballot,” Caskey said.
That way if the voter was correctly registered but the poll worker made an error, election officials can later count the ballot during canvass.
Some ballots with missing postmarks
Lawmakers want greater clarity on how to handle advance mail-in ballots that lack postmarks. Colyer and Kobach were at odds over whether those ballots should count.
In Kansas, advance mail-in ballots that arrive by the Friday after the election are counted, as long as they were mailed by the end of Election Day.
Specifically, the law requires that the ballots be “postmarked or are otherwise indicated by the United States postal service to have been mailed on or before the close of the polls on the date of the election.” In some cases, though, ballots may have arrived without postmarks that were clearly mailed before the end of Election Day. It’s not clear how many ballots fit that description statewide.
“We received an email from the secretary of state’s office, and it said if there was not a postmark that — the law said there should be a postmark or some type of marking from the post office showing what day it was mailed,” said Kathy Mick, the Jackson County clerk.
Those decisions are entirely up to the counties and their legal counsel, Caskey said, but the secretary of state’s office did send out guidance that served to “regurgitate the law.”
Tammy Patrick, senior adviser for the elections team at the Democracy Fund, said Kansas lawmakers were “forward thinking” because the law is vague enough to include other information “indicated by the United States Postal Service.”
That’s important, Patrick said, because USPS no longer postmarks every piece of mail, but it does attach other information, including processing marks and bar codes.
“Kansas has the ability ... to use any of that,” Patrick said.
And it’s “very rare” that a ballot ends up arriving at the elections office without any of those markings, Patrick said.
On the issue of mail-in ballots, Hensley said the Legislature might need to revisit the law he introduced allowing ballots postmarked by Election Day.
“This is the first election where that new law is actually supposed to be implemented,” Hensley said.
In addition, Johnson County discarded one ballot because the voter had died. The same happened in Jackson County.
Kansas law says advance ballots should not be counted whenever there is “sufficient proof” that the voter has died.
Kobach steps aside
Last week as it became clear the outcome of the Republican governor’s race would not be immediately known, Kobach faced growing pressures to recuse himself from any possible recounts and from overseeing vote counting.
In cable news appearances and in a formal letter to Colyer, Kobach agreed to step aside from overseeing vote counting. He maintains the decision was symbolic because the secretary of state’s office doesn’t directly count votes.
But Kobach’s office would have set the price of any recount in the race.
No state law requires the secretary of state to step aside in a recount if he or she is a candidate. Election experts have said Kobach’s recusal was necessary to avoid the appearance of conflict.
The Republican, Democratic and Libertarian candidates running to replace Kobach have all said they would recuse themselves in a similar situation.
Rep. Kristey Williams, an Augusta Republican who said she was pleased that Kobach recused himself, questioned whether a law is needed to require recusal.
“I think public opinion helps elected officials do the right thing,” Williams said. “A lot of times we don’t have to have a law for every scenario that could exist. Instead, public opinion will encourage that particular situation to move in one direction or another.”
Avoiding delays in counting votes
Candidates for secretary of state are emphasizing the importance of testing new voting systems ahead of major elections.
Delays in tabulating votes in Johnson County meant that Kansas voters didn’t have a full picture of results until Wednesday morning last week, more than 12 hours after the election.
Johnson County used new voting machines in the election. The county’s election commissioner, Ronnie Metsker, has said the machines themselves worked well but that delays occurred in the process of uploading data from tabulated results in each of the 192 polling locations.
The process, which should have taken seconds for each location, instead moved much more slowly.
“As secretary of state, I would encourage clerks: don’t beta test software in a major election. Do it in a smaller election so there’s less anxiety from the public and there’s less notoriety if you do it in a school board election or a bond election or something like that,” said Rep. Scott Schwab, the Republican candidate.
He noted the decision of what software to use rested with the county but said the secretary of state should be available to help counties work through problems, even if it’s 1 a.m.
Brian McClendon, the Democratic candidate, said he doesn’t think Johnson County tested under real-world conditions similar to election night.
“I think the biggest challenge is stress-testing the election systems,” McClendon said.