TOPEKA — Kansas Secretary of State Kris Kobach declared Friday that “it’s not over” after a judge ordered Shawnee County election officials to give candidates in a tight Kansas House race — including a vocal critic of Kobach — a list of voters who cast provisional ballots.
District Judge Rebecca Crotty ordered the voter names released Friday just hours after Rep. Ann Mah, a Topeka Democrat, filed a lawsuit to gain access to them.
Mah trails her Republican challenger, Ken Corbet, by only 27 votes out of more than 10,600 ballots cast in Tuesday’s election. Mah told The Associated Press she believes about 150 provisional ballots may come into play, though county officials didn’t have an exact count.
The lawsuit, hearing and order came only a day after Kobach’s office sent county election officials two memos advising them not to release such lists, arguing that disclosure would violate both state and federal law. Crotty disagreed, concluding the laws are designed to prevent the release of information about how individuals voted and won’t be violated if only their names are given to the candidates.
Shawnee County officials said they would try to comply by the end of the day, but Kobach told the AP that the dispute is “an ongoing legal proceeding,” without saying specifically how he’ll respond to Crotty’s order.
“I am saying it’s not over,” Kobach said. “This case is about how elections are going to be conducted.”
Voters cast provisional ballots when election workers aren’t sure they are eligible to vote at a particular polling place. The ballots are set aside and reviewed later.
Mah and other Democrats want to contact those voters to ensure they follow through on correcting the problems that forced them to cast provisional ballots in the first place, such as not having a valid photo identification or proof of their addresses. Once those problems are solved, county officials can count their ballots and Mah is hoping she will pick up enough votes to win.
“Our understanding is that there has been a long-standing practice of releasing this information for many, many years,” Mah said before the lawsuit was filed.
Corbet took the news of the ruling in stride, saying he’ll get the same list of voters.
“I’m still confident,” he said. “We’re still positive, and we’re still hoping for the best.”
Democratic Party officials gave the AP a copy of the petition before Mah’s attorney filed it in Shawnee County District Court. It named the Shawnee County Commission as the defendant because the county rejected Mah’s request for voter names and the commission is required to certify election results by Thursday.
Also, with the county commission as the defendant, Kobach’s office did not receive formal notice of the case.
Four members of Kobach’s staff — all in casual-Friday dress — arrived 15 minutes into the hearing, having seen reports about the lawsuit online. Crotty allowed Kobach’s office to intervene and present testimony from Shawnee County Election Commissioner Andrew Howell that compiling a list of names would represent extra work.
Still, Crotty ordered the names released, but only to the candidates.
From the bench, the judge told the parties, “Why don’t we see if there’s any way this can be affected today.”
Shawnee County Counselor Rich Eckert told her, “We’re not going to sit on this.”
Kobach said he’s still concerned about voters’ privacy.
The memos from his office Thursday to county election officials noted that a state law makes it a felony to disclose a ballot’s contents or “the manner in which the ballot has been voted” unless a court orders it.
The memos also cited a federal law that says: “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.”
Kobach’s guidance to election officials drew notice because of its timing — a day after Mah began asking about getting the names of voters — and because of the bitter political differences between the Republican secretary of state and the Democratic legislator.
Mah has criticized a state law championed by Kobach that requires voters to show photo ID at the polls. Campaign finance records show that Prairie Fire, a political action committee set up by Kobach, spent $3,123 on a mailing supporting Corbet on Nov. 2, four days before the election.
Kobach insisted the litigation isn’t about that race. “It’s about a much broader principle.”