A Sedgwick County judge has ruled that a Wichita State University statistician won’t get access to paper tapes from voting machines to search for fraud or mistakes.
Judge Tim Lahey denied a motion by Election Commissioner Tabitha Lehman to dismiss the case brought by statistician Beth Clarkson. But that was a hollow victory for Clarkson. Her point in filing the lawsuit was to gain access to the tapes to check the accuracy of the voting machines, searching for an answer to statistical anomalies she has found in election results.
The paper tapes at issue are printed by the voting machines as each voter casts a ballot. The voter can view the tape through a plastic window in the machine to verify their choices before hitting a button that records their votes.
Clarkson sued last year seeking access to the tapes under the Kansas Open Records Act. Representing herself without a lawyer, she lost.
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Since then, Randy Rathbun, a former U.S. attorney, has taken up the case. He said Clarkson, chief statistician for the university’s National Institute for Aviation Research, lost the open-records case because she is “a brilliant statistician” but “a horrible lawyer.”
He changed strategy and sought a recount of votes, on the assumption that Clarkson would be able to watch the process and get the information she wants.
Lahey ruled that Clarkson had already brought the issue of access to the tapes to court and lost, so he couldn’t order Lehman to turn them over now. The law prohibits fighting the same legal issue twice.
If I allow the recount, (the paper tapes) will not be disclosed to your client.
Judge Tim Lahey
Lahey told Rathbun that he “won the battle” because the case could go to trial on the question of whether to have a recount. But he “lost the war,” because Clarkson won’t get access to the ballot tapes even if she wins at trial.
The judge granted Clarkson the option to appeal the ruling before deciding whether to go to trial. Rathbun said later that they plan to appeal.
Timely request for recount
Lahey did rule that Clarkson had made a timely request for a recount of votes cast in 2014.
And he criticized an assertion by Lehman’s lawyer, Assistant County Counselor Mike North, that too much time has now passed to conduct a recount.
Lahey said one issue in a trial would be whether Lehman erred in rejecting Clarkson’s initial request for a recount. He said if officials don’t do their job, they can’t hide behind deadlines “to excuse the failure to act.”
And although it wouldn’t change the outcome of any elections, which have already been certified, even a belated recount would have value in ensuring the integrity of elections, he said.
Clarkson said there are “anomalies all over the place” in election results and the only way to find out if the voting machines were broken or tampered with would be to check Lehman’s results against the paper tapes.
“I’m disappointed the judge ruled I wouldn’t be allowed to look,” she said.
“No one ever looks at them,” she said. “How can we know?”
No one ever looks at them. How can we know?
Beth Clarkson, Wichita State University statistician
More than 100 people, almost all of them voting-rights supporters, packed Lahey’s courtroom to standing-room only.
Lahey said the audience was not only the largest he’d seen at a motion-to-dismiss hearing, it probably exceeded all the people who had ever observed such a proceeding in his courtroom in his 26 years as a judge.
North argued that private citizens could not view the information on the tapes because state law bars disclosure of the contents of ballots to anyone other than officials appointed to count the votes.
Lahey expressed skepticism with that line of reasoning, saying: “It is disclosed. We know who won the election.”
North, however, said there’s a difference between releasing aggregate results and allowing a vote-by-vote examination. The closer inspection could reveal how some individual voters voted, if the tapes were matched to the times when voters cast their ballots, he said.
The first and only use of the paper tapes to verify a Sedgwick County election came in 2006, when challenger Walt Chappell contested a 373-vote loss to then-Rep. Brenda Landwehr in the 91st House District.
Acting on a court order by the late Judge Paul Clark, three appointed examiners rolled through the tapes using an improvised reel-to-reel device cobbled together by an election office worker.
The counting process was open to the public. Landwehr, Chappell, their lawyers and a reporter from The Eagle observed the process, which took a full day.
No discrepancies between the machine count and the reported count were found, and Clark shut down the recount before it was finished.
That recount was handled by former Election Commissioner Bill Gale.
If a similar situation were to arise, North said he’d advise Lehman not to allow members of the public to watch the counting from a vantage point where they could see the tapes.