by Katherine Paige

A U.S. District Court ruling handed down Wednesday in Kansas granted disclosure of the names of provisional ballot voters to candidates in a tightly contested state house race, thereby clarifying the scope of voter privacy protection under federal law.

The ruling was issued in response to a federal lawsuit filed by Kansas Secretary of State Kris Kobach to prevent disclosure of the names.

Kobach argued that federal election law protects voters’ identities from disclosure, citing § 302(a) of the Help America Vote Act (HAVA): “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.” U.S. District Court Judge Marten rejected Kobach’s argument, reading the plain text of the statute to protect only disclosure of how someone voted, not the identity of the voter.

Post-election showdown in Kansas’ 54th

The day following the election, when unofficial results showed incumbent Democratic Representative Ann Mah of Kansas’ 54th House district trailing her Republican challenger by 27 votes out of a total 10,633 cast, she issued a request for the names of the individuals who had cast provisional ballots in her district. That afternoon, Kansas Secretary of State Kris Kobach filed a lawsuit in federal court seeking to prevent disclosure of the names.

Mah requested the names of provisional ballot voters in Osage, Douglas and Shawnee Counties through the Kansas Open Records Act (KORA). The Douglas County Election Commissioners were the first to comply, releasing a list of less than thirty names. That disclosure prompted a memo from Kobach’s office instructing the state’s county election officers to deny any further requests for names, claiming not only that KORA excludes these requests, but that disclosing the names would violate federal law.

Osage County Commissioners opted not to release the names, but instead counted and certified the provisional ballots. Of the nearly 90 provisional ballots, the 53 added resulted in a net gain of 17 for Corbet, increasing his lead to 44. (The final results of Douglas County’s provisional ballot count resulted in a net gain of 2 for Rep. Mah, narrowing Corbet’s lead to 42 votes.

Shawnee County Election Commissioner Andrew Howell refused to release the names, citing a Kansas statute requiring a court order for such a request. Mah then filed a lawsuit in Shawnee County court, forcing Howell to release the names by a deadline at 6PM last Friday pursuant to a court order. Despite Mah’s apparent victory in the case, Kobach held out hope that his pending federal lawsuit might prevent her from contacting voters or further distributing their names.

When Shawnee County released its certified election results yesterday evening, the final count revealed Mah lost the election by 21 votes.

Protecting Voter Privacy, or Politics as Usual?

Kansas Democrats see the federal lawsuit as an intentional, politically motivated retaliation attempt by the Republican Secretary of State to diminish any chance Mah had at retaining her office. The ranking Democrat on the House Elections Committee, Mah had been a major critic of Kobach’s voter ID and proof of citizenship bill, passed into law in 2011 as the Secure and Fair Elections Act (SAFE). One of the strictest laws of its kind, SAFE was derived directly from Arizona’s controversial immigration bill, another piece of legislation championed by Kobach.

Critics point to the voter privacy argument contained in Kobach’s memo to the state’s election commissioners, which appears to deviate from the state’s existing policy. According to state election officials, it has been standard practice for years to release the names of provisional ballot voters. A 2006 memo from Kobach’s predecessor appears to authorize the practice, and the names of provisional ballot voters were requested and granted as recently as August to a Democratic candidate who made an Open Records Request for the names of voters in the state’s primary.

It may also be noted Shawnee County Commissioner Howell, a former Republican state house representative, was appointed by Kobach in September: under Kansas law, while “elections in 101 of the state’s 105 counties are administered by elected county clerks . . . the secretary of state appoints election commissioners for the four most populous counties – Johnson, Sedgwick, Shawnee and Wyandotte.”

The Kansas Secretary of State is an elected office and Kobach, a Republican, makes no secret of his political affiliation. He endorsed Republican candidate Mitt Romney early in the presidential election, later serving as the campaign’s ‘immigration adviser’. Kobach also served as honorary campaign chairman for a Republican candidate for the Kansas senate.

In March, Kobach drew bipartisan criticism for forming Prairie Fire[JD1] , a political action committee (PAC) that supported conservative candidates challenging incumbent moderates in the state’s Republican primary. In other words, the Kansas Secretary of State, “responsible for overseeing the administration of all national and state elections in Kansas,” chairs a PAC that spends money in support of conservative candidates running for state office. Conservative candidates like Ken Corbet. According to campaign finance records, Prairie Fire spent $3,123 on a mailing four days before the election in support of Mah’s Republican challenger.

Kobach, a rising star of the Republican Party, is no ordinary Secretary of State. Kobach is a graduate of Harvard, Oxford, and Yale, a former law professor, and published author of a book and various scholarly articles on election law, with a long resume of high profile partisan legal activity. Kobach is architect of the Interstate Cross Check Project, a consortium of states that share a voter information database in an effort to purge ineligible voters from the rolls. Critics have charged that Kobach and his “cabal” are attempting to remake U.S. election law “fueled primarily by the desire to harass immigrants.”

Though Mah has decided not to seek a recount, Kobach appears less keen to dismiss his federal court loss. Kobach has already announced plans to appeal the ruling “in hopes of obtaining a favorable federal appeals court ruling that would apply in future elections.” Kobach’s argument may yet prevail in spite of the district court ruling. Just hours after Judge Marten announced his opinion granting Mah access to the names, the Kobach-appointed Sedgwick County Election Commissioner denied another candidate’s request for names of provisional ballot voters for lack of a court order.


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