AP Analysis: Kobach at center of Kansas post-election fight

11/19/2012

By JOHN HANNA

By JOHN HANNA

AP Political Writer

TOPEKA (AP) — The post-election legal battle between Kansas Secretary of State Kris Kobach and a legislative critic resolved little, but it provided another example of how disputes involving Kobach often can pivot to questions about his motives.

Kobach intervened as Democratic state Rep. Ann Mah of Topeka sought the names of voters who cast provisional ballots in her close re-election race. Mah and her supporters saw an opportunity to avert a narrow loss by contacting the voters and helping them address problems so that county officials would count their ballots.

The Republican secretary of state advised county election officials statewide not to release voter names. When that didn't prevent Mah from getting lists, he pushed the dispute into federal court to block Mah and her GOP challenger from contacting voters. He didn't prevail, but the long-term effects aren't clear.

Kobach said he pursued the issue so aggressively because federal and state laws require election officials to protect the privacy of individual voters. Even after a federal judge rejected Kobach's interpretation of federal law, the secretaries of state stuck to his position and Democrats were blocked from receiving names of provisional voters in at least two other races.

"The protection of the privacy of every voter is an important principle," Kobach said. "It doesn't matter which race it is."

Mah, who has a history of sparring with Kobach in public, quickly shifted the focus to the attorney general's motives.

Kobach's office sent two memos to county election officials after Mah began asking about obtaining provisional voters' names. Also, a political action committee he formed was involved in Mah's race against GOP challenger, Ken Corbet of Topeka, who eventually won by 21 votes out of nearly 10,800 cast.

Kobach, a former law professor, is known nationally for helping write Arizona and Alabama laws against illegal immigration, and he was an informal adviser to GOP presidential nominee Mitt Romney — a fact noted in election post-mortems ascribing Romney's defeat in part to opposition among Hispanic voters.

The secretary of state also championed a Kansas law requiring voters to show photo identification at the polls as a way to combat election fraud. Mah voted for one version of it in 2011, the final version, but she has argued that it suppresses turnout among poor, minority and elderly voters.

Mah promised to remain active at the Statehouse to oppose future Kobach initiatives because, "I'm sure he'll be up to no good." She not only suggested that Kobach intervened to silence her but said that contacting provisional voters would generate information about the effects of the voter ID law, perhaps uncovering someone who could challenge it in court.

"It's all about avoiding the lawsuit and stopping anybody who's interested from getting any real information," she said.

Provisional ballots are cast when election workers aren't sure people are eligible to vote at particular polling places because of the lack of a proper photo ID other reasons such as a name change with marriage. Each ballot is placed in an envelope and set aside for further review.

Kobach's office said releasing names of provisional voters would violate a federal law that says, "Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot."

U.S. District Judge J. Thomas Marten told Kobach in federal court that the law blocks disclosure of information about how someone votes but not the release of voter names. However, Marten also said his ruling didn't apply beyond Mah's race.

Kobach said the position of the secretary of state's office has been consistent for years, even before he took office in January 2011.

But county officials differ on that point.

Part of Mah's district is in Osage County, and it refused to release the names of provisional voters, with the county commission chairman calling the idea "ridiculous." In Wichita, Democrats sued to force Sedgwick County to release names, and District Judge Mark Vining said state law prohibited the move, then described it as "an undue burden" on election officials.

But in August, Reno County released provisional voter names to the loser of a close Democratic primary. Deputy Election Officer Jenna Fager said the secretary of state's office "didn't have a policy in place."

In federal court, the Douglas County counselor cited a November 2006 email from Brad Bryant — still the secretary of state's elections chief — saying in limited circumstances, information on provisional ballot envelopes "appear to become open record." And Douglas County Clerk Jamie Shew said counties have released names for years.

As for Kobach's position, Shew said, "It was a pretty big change in how things are done."

Such comments are fodder for Kobach's critics. They ensure that the biggest result from this year's legal tangles over provisional ballots will be ongoing scrutiny of a political figure who attracts indignation from his political opponents.

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