Canvassers begin looking at provisional ballots in heat of tight GOP gubernatorial primary

photo by: Peter Hancock

Johnson County commissioners, meeting as a board of canvassers, consider which provisional ballots to count in the county's totals on Monday, Aug. 13, 2018. The results will be important in determining who won the Republican primary for governor in Kansas.

Story updated at 5 p.m. Monday, Aug. 13, 2018:

County boards of canvassers began meeting Monday to sift through thousands of provisional ballots that were cast in the Aug. 7 primary — ballots that will likely determine who will be declared the winner in the tight GOP primary race for governor between incumbent Gov. Jeff Colyer and Secretary of State Kris Kobach.

Among those counting provisional ballots Monday was Johnson County, the state’s most populous county, where county commissioners, sitting as a board of canvassers, added 1,176 provisional ballots and 275 partial ballots to their primary election vote totals. But the county won’t release the totals from those ballots until Tuesday afternoon.

That’s because the county still needs to sift through more than 13,000 write-in ballots for Republican and Democratic precinct committee positions.

Meanwhile in Sedgwick County, the second most populous county, Election Commissioner Tabitha Lehman said in an email that more than 1,300 provisional ballots will be counted.

Like Johnson County, though, the new totals won’t be reported until Tuesday because Sedgwick County has more than 21,000 write-in ballots to be tabulated.

As of 5 p.m. Monday, with 63 counties reporting their canvass numbers, unofficial results showed Kobach leading Colyer by 206 votes out of more than 314,000 ballots cast, a margin of 0.07 percent.

All told, roughly 9,000 provisional ballots were cast statewide in the Aug. 7 primaries, but it was not known Monday exactly how many of those came from Republican voters and how many came from Democrats.

No matter how the final canvasses come out, however, both Kobach and Colyer appeared to be bracing themselves for what could be a protracted and costly legal battle. Both campaigns were expected to send observers to oversee the canvasses, and both have challenged each other’s interpretation of certain laws governing provisional ballots.

Johnson County Election Commissioner Ronnie Metsker said his office is preparing for the likelihood that either one or both of the top two Republicans will ask for a recount, which then could be followed by a court challenge.

“We don’t know exactly what that recount might look like because candidates are afforded the opportunity to tailor what kind of a recount they want,” Metsker told reporters after the canvass. “Until there is a recount officially ordered, we can’t make any comment about it because we don’t know the specifications of the recount, if it comes.”

Kansas Attorney General Derek Schmidt on Friday sent what he called a “litigation hold” letter to all 105 counties, directing them to preserve all records that are related in any way to the primary election, saying a lawsuit over the results appears “reasonably likely.”

“This is a common step when litigation is anticipated,” Schmidt said in a statement late Friday. “I suspect local officials already would have done this as a matter of course, but as the state’s chief legal officer, and because of the obvious statewide importance of any potential litigation related to this election, I felt it prudent to provide this clear guidance in a manner that is uniform statewide so there can be no confusion or misunderstanding.”

In every election, a certain number of ballots are set aside as “provisional” ballots because the voter’s registration isn’t completely clear. The largest category of those involves voters who have moved or changed their names since the last time they registered.

Another category includes voters who show up at the wrong polling place within the county. Officials typically will count those voters’ ballots for statewide and congressional races because those candidates are the same throughout the county. But they will not count those voters’ ballots for a legislative candidate if the voters don’t actually live in that district.

Among the provisional ballots Johnson County officials counted Monday were 57 ballots from unaffiliated voters who had been mistakenly told they had to cast a provisional ballot, even though they declared a party affiliation at the polls.

“If a voter is unaffiliated, they’re given the opportunity to affiliate at any given moment, all the way up to and including when they arrive at the polls,” Metsker said. “And by affiliating from unaffiliated to either the Democratic Party or the Republican Party, they can then vote in the primary for the party with which they affiliated.”

Johnson County also rejected 272 ballots from people who tried to change their affiliation from one party to another after the June 1 cutoff date for party switching. It also rejected 35 ballots from unaffiliated voters who did not declare a party affiliation at the polls.

How ballots from unaffiliated voters are treated has been a point of contention between Colyer and Kobach.

Assistant Secretary of State Eric Rucker told county election officials Sunday that if an unaffiliated voter did not first complete a declaration of party affiliation, that voter was not entitled to cast a ballot. The opinion from the governor’s office said provisional ballots cast by unaffiliated voters in a primary should be construed as evidence of voter intent and must be counted.

Johnson County also rejected 13 mail-in ballots that were postmarked after Election Day, plus another four ballots that either had no postmark or an illegible postmark.

About 60 percent of the ballots counted in Johnson County on Election Day were Republican ballots. If that ratio holds true with the provisional ballots, that would add approximately 870 ballots in the GOP primary for governor.

Through Friday, Colyer led Kobach in Johnson County, 47-32 percent. But Kobach was leading Colyer in Sedgwick County, 46-37 percent.

Douglas, Shawnee and Wyandotte counties are all conducting their canvasses on Thursday. Final results of all 105 county canvasses won’t be known until Monday, Aug. 20.

— The Associated Press contributed to this story.

photo by: Associated Press

Johnson County Election Commissioner Ronnie Metsker speaks during the Johnson County Board of Canvassers, Monday, Aug. 13, 2018, in Olathe, Kan. (AP Photo/Charlie Neibergall)


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