Kansas Secretary of State Kris Kobach said Wednesday that he has no plans to recuse himself from a recount process in the race for governor, a stance that legal and political experts questioned.
“The recount thing is done on a county level, so the secretary of state does not actually participate directly in the recount,” Kobach said at a campaign event in Topeka after initial results showed him winning by fewer than 200 votes.
“The secretary of state’s office merely serves as a coordinating entity overseeing it all but not actually counting the votes,” he said, contending that his role puts him at arm’s length from the actual recount.
No law requires Kobach to recuse himself, but political and legal experts said he should do so to maintain trust in the election.
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In an interview broadcast later on Fox News Channel, Kobach appeared to backpedal a bit. “If my opponent insists I recuse ... we can certainly do that,” he said.
Kobach, the state’s top election official, led Gov. Jeff Colyer in the Republican primary by a mere 191 votes Wednesday morning after each of the state’s 105 counties had posted election returns. It took until then because technical difficulties in Johnson County delayed results on election night.
Colyer has the right to request that Kobach’s office initiate a recount if he still trails after counties tabulate provisional ballots and mail-in ballots postmarked by the deadline.
The governor also would also have to file a bond with Kobach’s office to cover the cost of a recount, at a price set by Kobach. If a candidate wins following a recount, no action would be taken on the bond.
Mark Johnson, a Kansas City attorney with experience in election law, said Kobach’s role in setting the cost is the primary reason why he should recuse himself. He said Kobach should cede this authority to a deputy.
“Secretary Kobach should not decide that. That is a conflict, in my opinion. To that extent, the secretary is directly involved in the recount process. … He could set the bond so high that no one could afford that,” said Johnson, who was a member of the team that defeated Kobach in federal court earlier this year in a case that overturned a Kansas voting restriction.
Colyer avoided discussion of a recount Wednesday afternoon, focusing instead on the uncounted provisional ballots, which are estimated to range from 8,000 to 10,000 across the state.
“We’re not there yet,” Colyer said about a possible recount. “We need to get ready for the first count and we want to make sure that every vote, every legitimate vote, is counted.”
Colyer also sidestepped a question about Kobach’s lack of recusal and his role in setting the price for a possible recount.
“My focus is, we’ve got to get this first count right,” he said.
Republican legislative leaders said Wednesday morning that a recount is almost certain and could take weeks. The uncertainty facing the state drew comparisons from lawmakers and attorneys to the 2000 presidential election, which saw the U.S. Supreme Court halt a recount effort in Florida after several weeks.
Kobach acknowledged the process could drag on if a recount is requested.
“If the margin is less than 10 votes or something extraordinarily close, I would expect any person to call for a recount,” Kobach said. “(It) would take a significant amount of time to do a recount statewide.”
Attorneys who work in the election field say Kobach should recuse himself from that process despite the absence of a law requiring it.
Rep. John Carmichael, a Wichita Democrat, said that “fairness would dictate that Mr. Kobach personally recuse himself from that process and allow another member of his staff, who is not a candidate, to oversee that process.”
Colyer’s campaign would have no legal recourse to force Kobach to recuse himself, according to Carmichael, an attorney who has provided election protection services to national and state campaigns for two decades.
“My opinion is the recusal argument is a political argument as opposed to a legal argument,” Carmichael said.
Kobach said the concerns about his role are “endemic to having an elected secretary of state, but of course there are safeguards.” He pointed to the role of county officials and the fact that members of both parties would have a role in a recount.
Douglas County Clerk Jamie Shew confirmed that Kobach’s office may issue guidance to counties in a recount but that the process would be almost entirely overseen by local officials in the state’s 105 counties.
“There’s kind of a misperception that the secretary of state’s office administers the election, when really the elections get administered at the county level,” Shew said.
Shew said that in many counties, including Douglas, the board of canvassers is made up of county commissioners who appear on the ballot.
“In my experience, if there’s a close race, I’ve seen county commissioners do recuse themselves. Like my mom likes to say, perception is reality,” Shew said.
He also noted that the state is a long way from beginning a recount. Counties first must go through provisional ballots and mail-in ballots that were postmarked before Election Day.
During his campaign event in Topeka, Kobach said that both he and Colyer would be better off if his campaign ran “the baton down the course a little while” ahead of the eventual GOP nominee’s general election match-up with Democratic state Sen. Laura Kelly and independent Greg Orman.
“It is imperative that we begin running, understanding that this is a tentative victory,” Kobach said. “And that I am carrying the baton for this first week with the full knowledge that I may hand the baton to Jeff if the provisional ballots change the outcome.”
Colyer’s campaign sent out a fundraising email that emphasized that the race would have no official winner until the provisional ballots have been counted.
“Monitoring these efforts will take significant resources. All contribution levels have reset after the primary. Each person can contribution up to $2,000 or a couple can contribute $4,000,” the email said.
The email did not specifically mention the possibility of a recount after the provisional ballots are counted.
If Colyer goes on to lose by the current margin, “it will actually be the closest loss for any gubernatorial incumbent candidate in any primary ever,” said Geoffrey Skelley, a political analyst at the University of Virginia Center for Politics whose research dates to the 19th century.
Bob Beatty, a political scientist at Washburn University, called the situation unprecedented.
“He may not like this, but Colyer needs to be like Al Gore … and immediately appoint or ask representatives to be there for every stage of the process. He (Gore) had representatives watching everything,” Beatty said.
Rick Hasen, an election law expert at the University of California, Irvine, School of Law, said in an email that “it would be good practice even if not required by state law for an election official to recuse from any recount or legal proceedings surrounding his or her own election efforts. A longstanding English and American tradition is that ‘no man should be a judge of his own case.’ That should apply here.”
Johnson said the process of conducting a recount is a public process; the public, the media and certainly the campaigns would pay close attention.
“Go back and look at the pictures of the Florida recount,” Johnson said of the disputed effort after the 2000 presidential election between George W. Bush and Al Gore. “It may look like that.”
On Wednesday morning, bleary-eyed Republicans gathered at a Topeka hotel for a unity breakfast. Although Colyer and Kobach did not attend, the governor’s race hung over the event.
Kansas Senate President Susan Wagle, a Wichita Republican, said there is “no question” a recount will take place.
“I think back to the days in Florida when the technology was different and George Bush had his first election and they were looking at those hanging chads and trying to count votes. I think with our new technology, we will have a governor (candidate) here in a few days that we will all unite behind,” Wagle said.
Kansas House Speaker Ron Ryckman, an Overland Park Republican, acknowledged that some people felt frustration at Johnson County over its problems counting votes.
“When I first came to Topeka, I didn’t know that JoCo was a four-letter word. This morning, walking into this breakfast, I felt it again,” Ryckman said to laughs.
He indicated a resolution in the governor’s race could take weeks.
“We’re going to have a few days, maybe weeks ahead of us before we know our ultimate candidate for governor,” Ryckman said, adding that Republicans are committed to supporting that person.
The prolonged uncertainty for Republicans will benefit Democrats as the the general election approaches, said Dave Wasserman, an editor for The Cook Political Report, a nonpartisan publication that analyzes congressional and gubernatorial races.
“Democrats have an opportunity to unite behind their gubernatorial nominee and Republicans still have to focus on each other — and that’s a problem for Republicans, given that Kansas primaries are relatively late to begin with,” Wasserman said.
Rep. Dan Hawkins, a Wichita Republican who supports Colyer, said the delay in crowning a nominee for governor won’t weaken the party heading into the general election. He noted that even if it takes one or two weeks to determine the winner, the general election is three months away.
Asked about Kobach’s role in a possible recount, Hawkins said Kobach would not be “intimately involved to the point where he would have any effect on (the result), but it would be a good thing if he went ahead and recused himself.”