Kansas secretary of state refuses to provide provisional ballot records despite court ruling

TOPEKA — Secretary of State Scott Schwab is refusing to turn over provisional ballot records in advance of the primary election, despite an appeals court ruling that says he is violating state open records law.

Voting rights advocate Davis Hammet renewed his request for the records in hopes of helping voters ensure their ballots are counted for an election in which a constitutional amendment on abortion rights could be narrowly decided. Schwab rejected the request while considering whether to appeal the case to the Kansas Supreme Court.

Hammet said it was “absurd” that Schwab was still trying to withhold public records, and that the legal battle over the records has lasted three years.

“Essentially, on a technicality, they can deny me the data, so the data is not really helping voters this election, which is just more gamesmanship, and it’s very frustrating,” Hammet said. “The reason we want this data is to assist voters and make sure their votes are counted.”

Schwab lost an earlier lawsuit to Hammet in which a district court judge ruled provisional ballot records are public records under the Kansas Open Records Act. Schwab responded by asking ES&S, the state’s election software vendor, to disable the ability to produce the records Hammet wanted.

In a July 22 ruling, a Kansas Court of Appeals panel viewed Schwab’s actions as an illegal attempt to circumvent KORA.

Schwab is facing a GOP primary challenge from a candidate who is running on false narratives about election security. In a campaign email to supporters, Schwab said he was committed to defending ballot privacy.

“Liberal activist judges on the intermediate Court of Appeals reversed a district court decision and will order the Secretary of State’s office to grant public access to personal ballot information,” Schwab wrote. “As your Secretary of State, I have always been committed to defending your constitutional rights — especially your right to cast a private ballot. However, this fight is not over. I am running for a second term to continue pushing back against the liberal activist agenda that wishes to make private and personal ballot information public.”

Hammet is asking for records that would indicate whose ballots are being discarded — but not how those individuals voted.

Kansas voters cast thousands of provisional ballots in every election cycle, many of which can be counted if problems are corrected between Election Day and canvassing. For example, advanced mail ballots are placed in jeopardy if there is a question about whether a voter’s signature on the ballot matches the signature from the voter’s registration. Voters who forget to bring a photo ID on Election Day can bring their ID to the election office. A voter may not initially show up in the database because counties don’t finish processing voter registrations before advanced voting starts.

Hammet and his nonprofit, Loud Light, would use the provisional ballot records to assist voters in addressing concerns about their eligibility to vote. The organization also could look for irregularities, such as a spike in provisional ballots issued a particular location.

In addition to the constitutional amendment on abortion, legislative races are often decided by a handful of votes.

Hammet said it has been “mindboggling how aggressively” Schwab has fought to withhold provisional ballot records.

Sharon Brett, legal director for the ACLU of Kansas, which is representing Hammet in his lawsuits against Schwab, said the secretary of state’s campaign statement was “unfortunate.” Multiple courts have now told Schwab he is wrong about the records being private, she said.

“These are engaged community members and organizations that are trying to expand access to voting and ensure that all individuals who are qualified electors can have their votes count,” Brett said. “The secretary of state of all people should be in favor of having people vote and making sure that their votes count. So whether that was a policy position of his office or a campaign talking point, I’m not sure. But I would hope the secretary of state would see that this unanimous decision from the Kansas Court of Appeals means that this information cannot be hidden from the public.”

Gov. Laura Kelly, in a news conference with reporters after voting Friday at the Shawnee County Elections Office, said Schwab should comply with the court order and make the records available.

“It’s important to be as transparent as possible and make as much information as is legal and responsible available to the public,” Kelly said.

Correction: Davis Hammet’s name was misspelled in an earlier version of this story.