Controversy Over Provisional Ballots Leads to Litigation, Legislation in Kansas

[Image courtesy of KSAZ]

A close 2012 state legislative race in Kansas has sparked court cases and legislation surrounding the question of whether or not provisional voters’ names are public record. The Topeka Capital-Journal had a terrific article yesterday – and I have excerpted it below in great detail because of the issues it presents:

Four months after Ken Corbet narrowly unseated Ann Mah for the Kansas House 54th District seat, the race continues to reverberate through the halls of the Statehouse and a federal court.

Before adjourning until May, the House and Senate passed a bill Friday barring disclosure of information about voters who cast provisional ballots — a bill largely inspired by Mah.

Mah, a Democrat, found herself trailing the Republican Corbet by 27 votes out of more than 10,000 cast on election night last November. The race wasn’t over: 104 Shawnee County voters in her district had cast provisional ballots — ballots that had to be reviewed by county canvassers before they could be counted — and there were more 54th District provisional voters in Osage and Douglas Counties.

With about 10 days before the canvass, Mah contacted county officials seeking the names of provisional voters so she could contact them.

…

Mah requested the names of the provisional voters in her district from Shawnee, Douglas and Osage Counties. Douglas County Clerk Jamie Shew, a Democrat, turned over the names from his county, later telling the Associated Press that limited provisional ballot information had always been considered open record.

Mah was also able to get information on some Osage County provisional voters.

“At least half-a-dozen people were able to get their votes counted and every single one was grateful for me calling and helping them out,” Mah said.

Mah said one Osage County voter cast a provisional ballot because his driver’s license was suspended. She asked him what else was in his wallet and he said he had a bus pass with his picture on it.

“I said ‘That’s a government-issued ID with a photo — let’s call and see if that will work,'” Mah said. “And it did.”

Mah said there was confusion among poll workers about the new law and some IDs that should have been allowed were not, including a college ID, a military ID and the temporary paper ID given to someone who had just renewed their driver’s license.

“Even though the person told me they had their old driver’s license with them,” Mah said.

Mah still did not have provisional ballot names from Shawnee County, which had the most 54th District voters and where Mah had an edge over Corbet in the votes already cast.

Her search for those names led to federal court.

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[Douglas County’s] Shew told the Associated Press he released the names of about 20 provisional ballot voters after both Mah and Corbet requested them. Within hours, he and elections officials in other counties received a memo from [Secretary of State Kris] Kobach’s office, instructing them that such information isn’t public record and, by law, isn’t to be disclosed.

In light of that, Shawnee County Commissioners denied Mah’s request, citing a state law that prohibits disclosure of the contents of ballots “except as ordered by a court of competent jurisdiction.”

Mah got such an order from a Shawnee County Court, which stated that she was within the law because she wasn’t requesting information on who the provisional voters voted for or why they had to cast a provisional. The court ordered the county to turn over the names.

Before the day was over, Kobach obtained a temporary restraining order from a U.S. District Court, preventing Mah from contacting the provisional voters on the list or distributing the list.

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Kobach said the Shawnee County decision was contrary to the 2002 [Help America Vote Act], pointing to a line that stated “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.”

The court disagreed with Kobach’s interpretation of the HAVA.

“The plain language of the statute protects “access to information about an individual provisional ballot,'” Judge J. Thomas Marten wrote. “It does not protect information ‘about the individual casting the ballot.'”

Marten wrote that the court therefore concluded the statute Kobach cited “does not protect the names of the voters who cast provisional ballots. As a result the court lifts the Temporary Restraining Order it had placed on the further dissemination of the list of provisional ballot casters, as well as its directions restricting contacting the voters who cast provisional ballots.”

The restraining order was lifted Nov. 15, the same day that Shawnee County canvassers certified election results that showed Corbet defeating Mah by 21 votes.

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While the restraining order was lifted, the federal case that could determine the future fate of provisional voter names is ongoing.

Kobach has urged the higher court to resolve a discrepancy between the the Shawnee County Court’s decision and that of a Sedgwick County Court that ruled against ordering disclosure of provisional ballot names.

Meanwhile, after waiting nearly the entire session to do so, the Legislature took Kobach’s advice and passed a bill Friday that would codify in state law that Sedgwick County’s approach was correct.

Though the measure would apply to both Republicans and Democrats, the issue has become increasingly politicized. The votes on the conference committee report to Senate Bill 122 in both chambers were almost entirely party-line, with one notable exception being Sen. Vicki Schmidt, R-Topeka, who voted against it.

This is an issue that could come up in other jurisdictions, especially when there are close elections like the one in this case. The ultimate fate of the federal case – and the state law spawned by the controversy – will be of great interest to policymakers considering the same question.