A judge is considering whether Kansas’ Republican secretary of state ran afoul of the state’s open records law by ordering the removal of an election database function that generates a statewide report showing which provisional ballots were not counted — a decision civil rights advocates say will have far-reaching implications for government transparency. Shawnee County District Judge Teresa Watson heard arguments last week in a lawsuit filed by voting rights activist Davis Hammet, who is the president of Loud Light, a nonprofit that strives to increase voter turnout. The group helps voters fix any issues that led them to cast provisional ballots so that their votes are counted.
Voters are given provisional ballots if they don’t appear to be registered, if they fail to present the required identification or if they are trying to vote at the wrong polling place. “We know there are deficiencies… where they aren’t counting votes that they should be counting and I think on some level there may be a resistance from the secretary of state to provide that data because it means we can highlight these deficiencies,” Hammet said in a phone interview Wednesday. “We can prove how there are votes that should have been counted that are not being counted.”
That information can raise public awareness about problems in the elections system, leading to changes in state law. He noted the political outcry over the hundreds of discarded mail-in ballots statewide in the 2018 primary led to legislation a year later that requires election officials to notify voters before their mail-in ballots are thrown out because of problems with signatures. Hammet won a lawsuit last year against Secretary of State Scott Schwab that forced him to turn over to him the names of voters who cast provisional ballots in the 2018 general election, including whether their votes were counted.
Schwab complied with the court’s order for the 2018 data, then instructed the outside firm that manages the database the end the secretary of state’s access to the statewide provisional ballot detail report. The state’s 105 counties can still run those reports, but only for their own local data. When Hammet tried to get the same information for the 2020 primary election, the secretary of state’s office informed him that it no longer had the ability to provide the statewide report. Court filings show he was told the technology firm that manages the database could manually pull the data for $522, but could not guarantee he would get it in time for the general election. The American Civil Liberties Union of Kansas again sued Schwab on behalf of Hammet. “The Kansas Open Records Act exists for a reason: to provide members of the public some measure of transparency and accountability of government agencies,” Sharon Brett, legal director for the ACLU of Kansas, said in a written statement. “What Secretary Schwab did here was first to deny that right of access, and then when he lost that battle, he took affirmative steps to make access exceedingly difficult. Secretary Schwab’s actions run counter to the very purpose of having an open records law in the first place.”
Schwab’s office declined Wednesday to comment on the ongoing litigation. But in court documents, his attorneys argue that the provisional ballot detail report serves “no functional purpose” to the secretary of state’s office and that no statute requires his office to maintain it or collect information about individual provisional ballots, They also contend Schwab has “no obligation to maintain this database function in perpetuity” and noted his office offered to contact the database vendor so they could write a script to manually pull the information Hammet sought if he paid for the cost. They also noted Hammet could obtain the data he wanted from county election officials. “Government is supposed to be by the people, for the people,” Brett said. “A ruling against our client in this case would mean that government in Kansas is for the people, but only when the government feels like it and has nothing it wants to hide.”