Randall Kilian simply wanted to keep pot away from his retirement home.
Kilian, who lived most of his life in Kansas, purchased a second home in Douglas County, Colo., for when he decided to retire from his work in geology.
In 2012, when Colorado proposed Amendment 64 legalizing marijuana, Kilian wanted to take a stand. When he received his ballot, he voted against Amendment 64, but he didn’t vote for any elected officials or other issues.
Kilian’s stance on marijuana in Colorado has thrust him into the national spotlight. Because he had also voted in Kansas that year, he was flagged for voter fraud by Kansas Secretary of State Kris Kobach’s office. Kilian was unaware he had committed a crime.
“I’ve been through a lot,” Kilian said. “I hate that I’ve been through this. Like I said, I’ve got a squeaky-clean record. Not so much as a parking ticket. And, you know, I hate to have my name slandered all over the state and nation because of it.”
The Ellis County, Kan., sheriff and county attorney questioned Kilian in 2012 and agreed he hadn’t intentionally broken the law. They decided not to charge him. But in 2013, the Legislature passed a law that transferred the power to prosecute voter fraud from county attorneys’ offices to the secretary of state.
In January 2013, Kilian was notified that he was being indicted for voter fraud by the state.
“Kobach never called to ask my side of the story. And therefore, you know, I’m the poster boy,” Kilian said. “And you know my name is spread all over the country for voter fraud. Yes, I did. I did (vote) in Kansas and Colorado. Kris Kobach saw that this was something that could enhance his resume and used that. I mean, he was correct. I’ve done what I’m charged with, but it’s not what it seems like.”
Kilian pleaded no contest in April 2016 and received the maximum fine of $2,500.
“Had it not cost me so much,” Kilian said, “and the attorney’s fees wouldn’t have been so much, you know, I would have fought this thing. Because like I said, I think if people were to hear my story, I think they would have said, ‘My gosh what is this really all about? Why are we doing this?’ Well, it was his agenda so he can keep a campaign promise.”
When Kobach ran for office in 2011, his platform claimed voter fraud was rampant in Kansas.
Kobach worked to get the Secure and Fair Elections Act passed by the Kansas Legislature. The 2011 bill made voter fraud “extremely difficult” for future elections, Kobach said in a news release at the time. Proof of citizenship when registering to vote and photo identification at voting centers were required.
University of Kansas assistant professor of political science Patrick Miller defines voter fraud as manipulating the process of an election, either by perjury, casting multiple votes, voter intimidation or improper vote counting.
“In a broad sense, anytime you have someone voting who’s not eligible to vote,” they cancel out the vote of someone who is, said Bryan Caskey, state election director in the Kansas Secretary of State’s office. “And in highly contested elections, that’s a big deal. In Kansas, every election cycle we have elections that are decided by a handful of votes. … So it doesn’t take much for an outcome of an election to be changed if people are voting who are not eligible to vote.”
The SAFE law targets voter impersonation, not other variations of voter fraud. Since the legislation went into effect in 2012, six cases of voter fraud have been prosecuted.
Each of the cases involved elderly citizens.
“At this point in time, most of the cases that come across our desk are people who have voted in more than one state in the same election,” Caskey said. “So far, in all of the cases we have successfully prosecuted, (those who committed voter fraud) were fined.”
Paul Baker, a supervising judge who oversees Election Day operations at Precinct 9 in Lawrence, said he doesn’t see rampant voter fraud.
“I mean, there is always some possibility (of voter fraud), but it is always very unlikely,” Baker said. “There are so many procedures we go through to verify who they are, and the fact if they are registered or unregistered. We have a whole procedure and do training ahead of time.”
Each individual who works the polls on Election Day is required to attend a training class, which covers the basics of operating the polling location. Each county teaches the same basic curriculum. In addition, Caskey said, each county receives supplemental material relative to its jurisdiction.
In 2014, Kobach furthered his efforts by suspending any Kansas voter who registered using the standard federal registration forms, instead of the state voter registration form, from any state or local elections because the federal forms didn’t require proof of citizenship.
This created a two-tier system that divided voters between those who used the state registration form, which required their birth certificate and allowed them to vote in all elections, and voters who used the federal registration form and could vote only in federal elections.
The American Civil Liberties Union argued that instead of keeping ineligible people from voting, the Kansas legislation made it more difficult for Kansans to vote. The ACLU filed two separate lawsuits against Kobach: The first opposed his policy forcing people to prove their citizenship to register to vote, and the second opposed a two-tier system.
A judge ordered Kobach to register those he had suspended, but he failed to meet the judge’s requirements for notifying voters. In September, a U.S. Court of Appeals panel confirmed citizens who didn’t provide proof of citizenship could still vote.
Despite the battle over voter registration, general election turnout actually increased by nearly 3 percent, according to the Kansas Secretary of State official election results.
When it comes to voter fraud, Miller said, the bigger issue should be whether election officials are tampering with elections, not individual voters.
“The substantially bigger issue with voter fraud has been election fraud being perpetrated by election officials and party officials tampering with votes,” Miller said. “You know, doing things like throwing books out, making up votes, creating ballots for people who didn’t show up and blatantly counting ballots the other way.”
Miller said Kansas has never had a significant history of voter fraud compared with other states. Throughout U.S. history, he said, voter fraud hasn’t been a single-party issue.
“The people that would be most likely (to have the most difficulty) to provide birth certificate to register to vote would be people who have moved into the state and are seeking a new license,” said KU journalism professor David Guth, who teaches a class on elections. “It could be older people. Some of the research I have seen has suggested that some of the people most likely to have difficulty providing that kind of information tend to vote Democratic.
“And so I’m just suspicious with (Kobach’s) motives. I just have not seen evidence that there is widespread voter fraud in Kansas.”
A number of states, including Ohio, South Carolina and Georgia, have spent tens of millions of dollars trying to investigate voter fraud in the 2012 election. Those states combined came up with fewer than 40 cases.
“It’s a lot of effort to put into a problem that the real data says barely exists and if it exists it doesn’t change much. … So you know it’s a minor problem,” Miller said. “That’s not to say that it doesn’t exist. That’s not to say that it shouldn’t be investigated or prosecuted, but it is not the rampant problem that the public believes that is there. Kris Kobach says it is. Donald Trump says it is. And the data just aren’t there to prove it. It’s a popular misconception that this is a massive problem.”
According to a report by the Brennan Center for Justice, rates of voter fraud are between 0.00004 percent and 0.0009 percent, making someone more likely to be struck by lightning than to commit voter fraud.
Battling over ballots
Beth Clarkson, chief statistician at the National Institute for Aviation Research and a Wichita State instructor, has been looking into the issue.
Clarkson became interested in the polling process when a friend ran for office in 2012. After taking a look at a statistical analysis technique that reported voter fraud, she did her own calculations and found results that would point to voter fraud.
“This does not make me feel very comfortable with what’s going on in terms of the accuracy of the count,” Clarkson said. “The more I’ve looked into it, essentially the more evidence I see that voter fraud might be occurring.”
Kansas does no post-election verification on either electronic or paper ballots.
After running the statistics, Clarkson decided to file a records request to get access to the paper trail of the ballots, so she could manually count the votes and check whether the statistical analysis matched the ballots that were turned in. Clarkson said this is absolutely necessary to validate the accuracy of the state’s voting equipment.
However, Kobach denied Clarkson’s request.
“There is a very specific law that Kansas has, that most states have, that does not allow any person to look at the ballot,” Caskey said. “Our law is very specific on that. Kansas is not unique to that. No one is allowed to handle actual ballots aside from trained election people running an election, and after each election they are put under seal and locked away and only a judge can order their release.”
Clarkson hired a lawyer and is in the process of a lengthy legal battle to obtain the paper ballots.
“I expected there to be a lot of the security requirements to actually access (the paper ballots),” Clarkson said. “And I was OK with that, but to be basically denied access because Kris Kobach chooses to interpret the law as meaning no one is allowed to look at them? Yeah, it kind of makes him come across as a hypocrite in terms of his desire to have honest, accurate, fair elections.”
Moving forward, Kilian hopes to leave this situation behind him. He now lives full-time in Colorado.
“I wish (Kobach) well. I have no animosity toward him,” Kilian said. “I just think he could have handled this a little better than this, but I don’t believe that was his motivation.”