The ready release of voter information in a case earlier this year calls into question Secretary of State Kris Kobach's attempt to prevent a persistent critic from getting a list of voters who cast provisional ballots in her close legislative race.
Democratic Rep. Ann Mah of Topeka, who trails her GOP rival by 44 votes in last week's election, asked a state court to force county officials to provide the names of those who cast as-yet-uncounted provisional votes in her district, and a state judge ordered it. Kobach, a Republican, responded with a federal lawsuit, arguing that Mah and her GOP challenger should not be allowed to contact voters who cast provisional ballots.
Kobach contends that the release of 131 such voters' names to Mah and her GOP challenger, Ken Corbet, violates federal law. A hearing in the secretary of state's litigation was set Wednesday afternoon.
But documents provided to The Associated Press on Wednesday show that the losing candidate in a close Democratic primary in August for a state House seat in Reno County requested — and received — far more information about voters casting provisional ballots than Mah and her GOP challenger.
Erich Bishop of Hutchinson received the names, addresses and reasons for provisional ballots in his primary. Mah, after her successful state court fight last week, received only names. Both Bishop and Mah received the information by filing open records requests.
Reno County Deputy Election Officer Jenna Fager told the AP that she had asked the secretary of state's office for guidance 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.
Kobach's office sent two memos to county election officials last week advising them against releasing names or other information about voters who cast provisional ballots.
"It has been the consistent policy of the secretary of state's office, going back years," Kobach said.
Kobach, a former law professor, is known nationally for helping to draft laws in Arizona and Alabama 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.
Mah and Corbet want to contact voters who cast provisional ballots and help correct potential problems so their votes will be added to the nearly 10,700 already counted in the 54th District when Douglas and Shawnee counties certify election results Thursday. Mah carried the Shawnee County portion of the district and hopes to pick up enough votes there to erase Corbet's lead.
Page 2 of 2 - 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.
The 54th District includes parts of Douglas, Shawnee and Osage counties, but Osage County certified its results Monday, without releasing the names of provisional voters to the candidates. Douglas County released the names of 27 voters to Mah on Thursday, just hours before Kobach's office issued its first memo advising against it and before the court battles began.
After Mah filed her lawsuit in state district court, Shawnee County emailed her and Corbet a two-page list with 104 provisional voters' names, in no particular order. The AP also received a copy from a political source.
Meanwhile, in a separate postelection lawsuit last week in state district court in Sedgwick County, a judge refused to order that county to produce a list of names for Democratic state Rep. Geraldine Flaharty of Wichita, who lost.
On Tuesday, U.S. District Judge J. Thomas Marten ordered Mah and Corbet not to contact voters until he considers Kobach's federal lawsuit.
In a follow-up federal court filing late Tuesday, Kobach argued that a ruling would be valuable even after counties certify their results because the issue "has the potential to surface not only in every election but multiple times in each election."
The Reno County case involves Bishop's primary against Democratic state Rep. Jan Pauls, also from Hutchinson, in the 102nd House District, which Pauls won by 8 votes.
Tom Witt, executive director of the Kansas Equality Coalition, a gay-rights group supporting Bishop, provided electronic copies of what Bishop received from Reno County. Witt said releasing such information helps candidates and the public assess how well elections are administered.