TOPEKA, KS - The Kansas Court of Appeals ruled Friday that Secretary of State Scott Schwab violated his office's obligation to follow the Kansas Open Records Act (KORA). The provisional ballot records at issue in the case are crucial for ongoing work to improve voter engagement and access in Kansas.
“This is a clear victory for government transparency and public records access,” said Josh Pierson, the senior staff attorney for the ACLU of Kansas who argued the appeal before the Court. “It affirms what we’ve said all along – that Secretary Scott Schwab violated KORA, and that government agencies should be working to make records more transparent, rather than less.”
The case is an intersection of government transparency with the ability of ordinary Kansans to hold their government accountable, with clear implications for voters’ ability to participate democracy in the state.
The three-judge panel found in favor of nonprofit Loud Light and its founder and Executive Director Davis Hammet, thereby reversing a district court judgment and ordering one in Hammet’s favor. The Court noted that the record Hammet requested–the provisional ballot detail report–was subject to KORA and needed to be disclosed, and held that Secretary Schwab violated KORA by turning off his office’s ability to access that record. The Court remanded to Shawnee County District Court Judge Watson with instructions to order Schwab to turn the office’s access to the record back on, “so the public can have access to that public record.”
"Four years ago, I started investigating the thousands of ballots being thrown out each election,” said Hammet, the plaintiff in the case. “Open records requests for the provisional ballot data allowed me to expose illegal policies that were disenfranchising voters, and allowed Loud Light to launch programs to ensure Kansans votes are counted. But unfortunately, the Secretary closed what were clearly open records under state law.”
“Today’s ruling is about more than just one year’s report. Today’s ruling shines a light into the darkness of Kansas's secretive government," said Hammet.
Loud Light, a nonprofit organization focused on expanding democracy and voter turnout, uses voter and provisional ballot information to help Kansas voters cure defects in their ballots. The original lawsuit of today’s appeal was filed in December of 2020 and was the second against Sec. Schwab over public access to the provisional ballot data report. This lawsuit was filed less than five months after a ruling in a prior suit, also Loud Light and Hammet v. Schwab, in which the court found that Sec. Schwab was required to produce the 2018 provisional ballot data report under KORA.
Following the June 2020 ruling, Mr. Hammet learned that Sec. Schwab’s office had instituted software changes removing the functionality to produce future provisional ballot reports, and his request for the 2020 version of the same provisional ballot report was denied.
Sec. Schwab then informed Mr. Hammet that he could only acquire the public record if Mr. Hammet paid for the software code to be re-written to restore the report functionality, but could only do so after the 2020 election.
The Court’s ruling today is available here.
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About the ACLU of Kansas: The ACLU of Kansas is the statewide affiliate of the national American Civil Liberties Union. The ACLU of Kansas is dedicated to preserving and advancing the civil rights and legal freedoms guaranteed by the United States Constitution and the Bill of Rights. For more information, visit our website at www.aclukansas.org.