The ballots of 23 Sedgwick County voters were tossed out Monday under a state law that requires disabled voters to sign their own mail-in ballot envelopes.
County commissioners, acting as the canvassing board for last week’s election, reluctantly signed off on the decision to toss out the ballots. They said they think the law is wrong, but they had no choice.
“We’re checking that for the next election, because it’s a stupid rule,” said commission Chairman Dave Unruh.
Rocky Nichols, executive director of the Kansas Disability Rights Center, said it defies common sense to require a person who is physically incapable of filling out a ballot to try to sign it.
“Some people with disabilities can’t use their arms,” he said. “It sounds like nobody’s disputing that these ballots were filled out (properly). It’s just technicality. ... It doesn’t seem right and it’s not right.”
The issue revolves around two affidavits that appear on the outside of voters’ mail ballot envelopes.
For the ballot to be counted, the voter is required to sign a statement on the envelope that he or she personally marked, enclosed and sealed the ballot.
But that instruction appears to conflict with the other affidavit on the envelope, where an assistant can sign to attest that he or she marked a ballot as instructed by the disabled voter.
County Counselor Eric Yost said he doesn’t see any way the voter can comply with the signature requirement without lying under oath.
“It’s worse than confusing,” Yost said. “It’s impossible to do it right. It makes me mad.”
Yost said he tried to contact the legal department at the secretary of state’s office to discuss the apparent contradictions, but didn’t get a return call on Monday.
The state law that mandates the signed envelope has been on the books since at least the 1990s, said Bryan Caskey, elections director in the secretary of state’s office.
The relevant section reads: “Any advance voting or mail ballot whose envelope containing the voter’s written declaration is unsigned, shall be wholly void and no vote thereon shall be counted,” Caskey said.
“The county election office doesn’t have any discretion,” Caskey said. “Any ballot that doesn’t have a signature must be challenged.”
Caskey was noncommittal on whether the commissioners have discretion to count the votes when they do the canvass for the election.
“I’m not going to say they can override a state law,” Caskey said. “I’m saying their job is to certify the election and they can act on the advice of their legal counsel, which is not the secretary of state.”
Voters with disabilities can vote at a polling place without physically signing their signature, Caskey said.
But to even get a mail ballot, a disabled person must have signed at some point to request it, he said.
He did acknowledge that many people who are disabled, elderly or bedfast are on a permanent list to receive mail ballots without having to request them each election.
Nichols said the state law requiring a disabled person to sign a ballot envelope could conflict with federal law.
“The Americans With Disabilities Act says you’re supposed to make reasonable accommodations for a person with a disability, for any public program, and voting is included in that,” he said.
Commissioners appeared to agree that the county should take a leading role in trying to get the law changed for future elections.
Commissioner Jim Howell, a former state lawmaker, called it a Catch 22 in the state law that he wasn’t aware until it came up this election.
“I know our intent (as legislators) was not to disenfranchise people with disabilities,” he said.