Miscounted ballots. A recusal. A voter integrity hotline. Possible lawsuits or a recount.
A week after Kansas voters cast ballots for the Republican gubernatorial primary, the high-stakes race remains a mess, with controversial Secretary of State Kris Kobach leading Gov. Jeff Colyer by only 312 votes as of Tuesday afternoon.
Kansas political observers told TPM they’ve never seen anything like it.
“We’re all racing around studying the state constitution because this doesn’t really come up much,” said Michael Smith, Chair of the Political Science Department at Emporia State University, of a possible recount for the state’s highest office.
Election night came and went with Kobach slightly ahead but final results too close to call. Then, last Thursday, the nail-bitingly close race entered a new phase after vote-tallying discrepancies in two rural counties chopped down Kobach’s lead. Clerks in Thomas and Haskell County said that the vote totals they turned over to the secretary of state were not accurately reflected on the office’s website.
The secretary of state’s office said the results were unofficial and that mistakes were being corrected as they were discovered. But the Colyer campaign pointed fingers at Kobach’s team, alleging that they were “giving advice to county election officials” and “making public statements” that are “inconsistent with Kansas law and may serve to suppress the vote” in the primary process.
Colyer’s campaign set up a “voter integrity hotline” — an expert troll against a secretary of state best known for waging a zealous crusade against widespread voter fraud that elections experts say does not exist.
Denying any wrongdoing, Kobach reluctantly recused himself from overseeing the process on Friday. He appointed his deputy and campaign supporter, Assistant Secretary of State Eric Rucker, to oversee the undecided election.
Mail-in, absentee and in-person ballots have now been counted. All that’s left to do this week is tabulate some 9,000 provisional ballots, which are handed out at the polls to voters who elections workers suspect may not be eligible to vote at the specific location where they showed up, or at all.
That seemingly dry task, currently being carried out county by county, is now the central drama in the race. At issue: which votes get counted.
Thanks to a quirk of Kansas election law, unaffiliated voters can still vote in partisan primary elections as long as they fill out a form at the polls on Election Day affirming their commitment to one of the major political parties.
Assistant Secretary of State Rucker warned county canvassing boards in a Sunday email that voters who failed to complete the required party affiliation document will have their ballots tossed out, the Kansas City Star reported.
But Colyer’s team has alleged that some local elections officials either forced the governor’s supporters to vote on provisional ballots, or failed to provide them with the required form, rendering their votes invalid. Colyer’s chief legal counsel sent out a letter cautioning that “the intent of the voter” should be considered in situations like this, according to the Star.
Elections officials in Sedgwick and Johnson County have confirmed that some voters completed their ballots improperly thanks to poor guidance from local elections officials.
“These are citizens. We train them. We train them hard. There were a number of problems,” Johnson County Election Commissioner Ronnie Metsker told the Star of one particular voting site.
Bob Beatty, a Kansas political expert at Washburn University, told TPM that the fight over unaffiliated, provisional ballots “would be the avenue of a possible court challenge” for Colyer’s team if the results remained very tight.
The other avenue is a recount. The Star reported that Colyer’s campaign has retained Missouri GOP Chairman Todd Graves to assist with legal matters surrounding the race, spurring speculation that he planned to request one.
Kansas Director of Elections Brian Caskey confirmed to TPM Tuesday that no candidate has yet contacted his office to initiate this process or about a possible lawsuit. He said all voting records are preserved in every election as standard procedure.
“For a primary election, there is no automatic recount, there is no margin, there is nothing other than the candidate gets to request a recount, the candidate gets to decide which counties they want to recount, the candidate posts a bond and away we go,” Caskey said.
Kansas law dictates that this upcoming Friday — the second after a statewide Election Day — is the deadline to make a recount request. Candidates would have to put up their own funds to cover the full cost. If the election results end up changing as a result, the counties and state would have to cover the cost.
Colyer campaign spokesman Kendall Marr told TPM via email that it was “premature” to consider a recount at this time.
“We are still in the process of the first counting of the votes,” Marr said. “We will assess where we are after the initial count has been completed.”
Political junkies can monitor that unofficial count, minute by minute, on the secretary of state’s website. A color-coded map showed that 3,511 of the 3,539 precincts have submitted their final unofficial vote tallies as of mid-afternoon Tuesday, and that Kobach holds a small but firm lead.
If Kobach pulls ahead further, experts say, the state could avoid the prospect of prolonged litigation or a court fight before the Aug. 31 deadline for the State Board of Elections to certify the election’s results.
If not, they warn, prepare for a Bush v. Gore redux.
“This is giving me flashbacks to Florida in 2000,” Burdett Loomis of the University of Kansas told TPM. “You honestly don’t have any good precedent to go on.”
That situation would be ideal for Democrats, represented by gubernatorial nominee and current State Senator Laura Kelly. Local political experts say that Kobach is generally agreed to be the weaker GOP candidate in a general election, so, they say, Democrats are hoping that the primary process drags on but still ends up with a Kobach victory.
Kobach’s team is making this line of thought explicit as it hopes to nudge Colyer out of the race.
“The liberals are hoping for a prolonged legal battle and a fractured Republican party,” Kobach campaign manager J.R. Claeys said in a Tuesday tweet. “They won’t get it. We will unite as a party and defeat the two liberal tickets in November.”
For some political experts, the chaotic situation unfolding speaks to Kobach’s misplaced priorities as secretary of state.
“He’s been chasing this illegal voting thing down the rabbit hole instead of updating election equipment and election procedures,” Smith of Emporia State told TPM.