Topeka A federal judge on Tuesday ordered candidates in a close Kansas House race not to contact voters who cast uncounted provisional ballots and set a hearing in a lawsuit that involves Secretary of State Kris Kobach and one of his most vocal critics.
U.S. District Judge J. Thomas Marten scheduled a hearing for Wednesday afternoon in Kobach’s lawsuit. It seeks to prevent Democratic state Rep. Ann Mah, Republican challenger Ken Corbet and their supporters from contacting as many as 131 voters who cast provisional ballots in the 54th House District in the Topeka area.
But ahead of the hearing, Marten agreed to prohibit the candidates from using voter names released to them by officials in Douglas and Shawnee counties. The 54th District includes parts of Shawnee, Douglas and Osage counties, but Osage County certified its local results Monday, reviewing provisional ballots without releasing voters’ names.
The Republican secretary of state initially sought to prevent officials in Shawnee County from releasing voter names to the candidates, but his filing Friday in federal court was too late to prevent it. He amended his lawsuit late Monday to block the candidates from using the names they’d received and included Douglas County in the lawsuit.
Mah trails Corbet by 44 votes out of nearly 10,700 cast, and she’s hoping to pick up enough votes from as-yet-uncounted provisional ballots to overcome Corbet’s lead. Both candidates hope to contact voters and help correct potential problems so that their ballots will be counted when the Douglas and Shawnee county commissioners certify results Thursday.
“Everything’s on hold until we investigate what the options are,” Mah said.
Kobach, a former law professor, is known nationally for helping to draft laws in Arizona and Alabama cracking down on illegal immigration. He also pushed successfully in Kansas for a law requiring voters to show photo identification at the polls. Mah has repeatedly criticized him and the law, and a political action committee formed by Kobach spent $3,123 on a mailing boosting Corbet just days before the election.
Democrats contend Kobach is trying to eliminate Mah’s last, slim hope for winning, but Kobach said he’s trying to protect voters’ privacy. He also contends the disclosure of voters’ names would violate federal law.
Kobach said the judge signaled that he is “keenly aware of the privacy issue.”
“The judge made it clear that this is an important concern,” he said.
Provisional ballots are cast when election workers aren’t sure people are eligible to vote at particular polling places, for reasons including the lack of a proper photo ID, a recent move or, for some women, a name change upon getting married. Each ballot is placed in an envelope and set aside for further review.
Kobach’s office sent two memos Thursday to county election officials, saying releasing voter names would violate a federal law that says: “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.”
But Douglas County had released the names of 27 voters to Mah just hours before. County Clerk Jamie Shew, a Democrat, said Tuesday that he and other county officials have been releasing such names for years, believing it was acceptable because the federal law is designed to prevent the disclosure of how people voted.
After Marten’s order, Shew said, “We will comply with whatever we are told to do.”
Shawnee County refused to release the names, but Mah filed a lawsuit in state district court to successfully force the disclosure. Kobach filed his federal lawsuit hours later, but without a federal judge’s intervention, the state court’s order remained in effect, requiring Shawnee County to turn over the names.
Mah and Corbet received a two-page document by email, listing 104 names in no particular order, with no additional information. The Associated Press later received the same list from a political source.
The issue is complicated by another lawsuit in Sedgwick County District Court filed by Democratic state Rep. Geraldine Flaharty of Wichita, who trails in her race. A judge there refused to order the release of voter names.