Judge rules Kansas secretary of state didn't violate open records law in dispute over ballot report

Andrew Bahl
Topeka Capital-Journal
Election workers at the Shawnee County Election Office, 3420 S.W. Van Buren, process the remaining ballots Monday morning. County commissioners approved the counting of 1,621 envelopes that may contain provisional ballots.

Secretary of State Scott Schwab’s office was within its rights to remove a function generating a statewide report showing which provisional ballots weren't counted, a Shawnee County judge ruled Wednesday. 

The case, brought by Davis Hammet and the ACLU of Kansas, director of the civic engagement group Loud Light, argued Schwab’s move to ask the contractor managing the state’s voter registration database to dump a feature creating the report was a bid to circumvent the state’s open records laws.

But Shawnee County District Court Judge Teresa Watson ruled there was nothing compelling Schwab’s office from maintaining the ability to create the report, only that they must make the report available for inspection if the document exists.

Under the Kansas Open Records Act, an entity can't be required to create a record which doesn't otherwise exist, though Hammet and his lawyers had maintained that didn't apply to the provisional ballot report.

When a voter goes to the wrong polling place or is not registered to vote, they will fill out a provisional ballot. That ballot can then be counted if they correct the mistake — but in many cases this doesn't occur.

More:Kansans have two weeks to register to vote or change registration. Here is how to register to vote.

Schwab’s office was previously ordered to give Hammet information on provisional ballots in the 2018 election, with the data often used to help voters ensure they can correct mistakes on their ballot.

When Hammet requested the information for the 2020 election, Schwab’s office refused, saying the record no longer existed. 

While it would have been possible to pull the information Hammet requested, it would have required a more time-intensive process to do so. The contractor that managed the system, ES&S, said it would cost $522 to retrieve the list. 

“This was an attempt by the secretary to not have to produce these records that he litigated to not have to produce,” ACLU attorney Josh Pierson said at a hearing earlier this year. “He lost. He took matters into his own hands.”

More:Local elections are critical to the success of our communities. Do your part and register to vote.

While Watson wrote Hammet “understandably” raises concerns about why Schwab’s office eliminated the ability to produce the report, she said that had no bearing on the lawsuit’s success.

“There is no statute within or apart from KORA that requires the Secretary of State to create a statewide provisional ballot detail report either by hand or electronically,” Watson’s ruling said. “There is no statute that dictates how the Secretary of State must program the databases it uses to store information.

"There is no statute that requires the Secretary of State to create or maintain the most efficient and least costly electronic method for packaging large volumes of information for public consumption. Hammet believes that there should be such a law, but that is a debate for another forum.”

More:Judge declines to temporarily block enforcement of Kansas voting law related to who can collect ballots

On Thursday, Hammet and the ACLU said the ruling was "deeply concerning."

"This raises deep concerns about government accountability, transparency, and fair elections," Hammet said in a statement. "I’m working with my attorneys to consider appropriate next steps in our fight to ensure all eligible votes are counted." 

Loud Light is one of a handful of groups challenging an unrelated set of changes to the state's election laws, passed earlier this year. That case is also making its way through Shawnee County court, with a judge electing last month not to halt the laws' implementation.

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.