Topeka Kansas Secretary of Kris Kobach lost a legal battle Wednesday to block one of his most persistent critics from contacting voters who cast uncounted provisional ballots in her close legislative race, and some county officials suggested his stance represented an attempt to change office policy.
U.S. District Judge J. Thomas Marten ruled against the Republican secretary of state in a federal lawsuit Kobach filed last week to prevent Democratic state Rep. Ann Mah of Topeka from obtaining a list of provisional voters. When his litigation failed to prevent the release of 131 names, Kobach sought to prevent Mah and her GOP challenger, Ken Corbet of Topeka, from contacting the voters.
Kobach argued that a federal election law shields voters' identities from disclosure, but Marten disagreed, saying the law's goal is only to prevent disclosure of how someone voted. Meanwhile, Kobach faced additional questions outside of court because his office didn't block the release of similar information about provisional voters in another close Kansas House race earlier this year.
Asked Wednesday why that situation didn't result in litigation, Kobach said he "didn't have personal knowledge" about it.
Mah trails Corbet by 44 votes out of nearly 10,700 votes cast, and she hoped to gain votes by helping people correct potential problems with their provisional ballots. Her 54th House District includes parts of Douglas, Osage and Shawnee counties; Osage County certified its results Monday without releasing provisional voters' names, while Douglas and Shawnee counties planned to canvass their votes Thursday morning.
Kobach argued that broader issues than the outcome of Mah's race were at stake — voters' privacy and the integrity of the secret ballot. He said after Marten's ruling that he'll keep pursuing lawsuit in hopes of obtaining a favorable federal appeals court ruling that would apply in future elections.
"It will affect the privacy of thousands and thousands of provisional voters in the years ahead," 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.
Mah obtained 27 provisional voters' names from Douglas County and filed a successful state district court lawsuit to force Shawnee County to turn over its own list. Shawnee County emailed her and Corbet a two-page document, listing 104 voters in no particular order, with no information outside of their names.
She said she and her supporters contacted voters over the weekend, and "We're pretty much done."
Josh Ney, an attorney representing Corbet, said he had not contemplated contacting provisional voters until he learned Mah wanted to do it and has made no attempt.
"This is an inappropriate practice," Ney said.
Kobach, a former law professor, is known nationally for helping write Arizona and Alabama laws cracking down on illegal immigration and 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, though she voted for one version, the final one, in 2011.
Democrats have suggested Kobach was trying to eliminate her last, slim chance of retaining office, something he disputes. A political action committee he formed spent $3,123 days before the election on a pro-Corbet mailing.
Kobach's office sent two memos to county election officials last week advising against releasing provisional voters' names, though the first arrived shortly after Douglas County released its list to Mah.
Kobach said the memos reiterated a longstanding policy of his office.
But Douglas County Clerk Jamie Shew, a Democrat, has said county officials have released provisional voters' names for years. In federal court Wednesday, Douglas County Counselor Evan Ice said Shew relied on a November 2006 memo from one of Kobach's predecessors, saying releasing names is acceptable.
And documents provided to The Associated Press showed that Erich Bishop, who lost a primary race in August to Democratic state Rep. Jan Pauls in Hutchinson by only eight votes, requested and received information about 35 provisional voters from Reno County. Bishop received names, addresses and voters' reasons for casting provisional ballots.
Both Bishop and Mah filed open records requests. Reno County Deputy Election Officer Jenna Fager told the AP that she asked the secretary of state's office for guidance before releasing her information but didn't get a definitive answer before a deadline in the state's Open Records Act led her to provide the names to Bishop.
"They didn't have a policy in place at the time," Fager said. "I'm not sure when they made this new policy."
But Kobach said he has been consistent in his stance that names of provisional voters can't be released, saying his office denied an open records request from Mah after the August primary. It denied yet another request Wednesday from a Democratic activist for a list from Geary County — the response arriving 40 minutes after Marten's hearing ended.
Kobach confirmed that in August, Fager contacted his office's election division and it still was preparing an answer for her when she released information about provisional voters to Bishop.
"We never told her it was permissible, nor would we," he said.