Kansas’ top election official violated the state’s open records law when he had desktop computer software changed so that it could no longer produce the data a voting rights advocate was looking for, a the state appeals court said Friday.
The ruling ordered a trial court judge to order Secretary of State Scott Schwab to reverse the software change in the state’s voter registration system so it can again produce a statewide report on provisional ballots. Voters receive provisional ballots if they appear unregistered, fail to show required identification, or attempt to vote at the wrong polling station. Their ballots are set aside for later review by local authorities, who determine whether they will be counted.
Davis Hammett is the founder of the suffrage group Loud Light, which helps voters resolve issues that have caused them to vote provisionally so their votes can be counted. He also studies voting rights issues and lobbies the Legislative Assembly.
Hammett first sought the information after the 2018 general election and then repeatedly in 2020. Schwab’s office provided it free of charge until the fall of 2020, when Schwab asked the vendor who runs the system to turn off voter registration functionality that produces the reports.
“The report function may not have been of any use to the secretary, but it has been useful to Hammet and to the public,” Judge Stephen Hill wrote for the three-member appeal panel. “And that’s the purpose of open public records.”
Concerns among suffrage advocates about how provisional and mail-in ballots are handled grew during the tenure of Schwab’s predecessor, conservative Republican Kris Kobach, a supporter of tough voter ID laws. In 2016, Kansas rejected at least three times as many ballots as states of a similar size.
A political outcry over hundreds of rejected mail-in ballots statewide in the 2018 primary — when Kobach won the GOP gubernatorial nomination by 343 votes — led to a 2019 law requiring election officials to notify voters before their mail-in ballots are rejected because of problems with signatures.
While Hammet hailed Friday’s decision and predicted it would help others search for state documents, he said it was frustrating to have to go to court to get documents that help his group. to identify potential problems in the management of provisional ballots.
“It helps us create better state laws,” Hammet said. “We were prevented from doing this.”
Schwab is running in the Aug. 2 Republican primary against a challenger on his right who promotes baseless voter fraud theories and accuses Schwab of not being transparent. A spokesperson for Schwab said in an email that his office is reviewing the decision.
The secretary of state argued in 2019 that the provisional ballots contained confidential information and were not public documents. Hammet sued him, and Shawnee County District Judge Teresa Watson declared the reports public. Schwab delivered the reports to Hammet on several occasions.
The Secretary of State had the voter registration system software modified in September 2020. When Hammett requested another report about three weeks later, Schwab’s office suggested he get the data from the vendor – at cost $522.
When Hammet sued Schwab again, Watson sided with Schwab and said the ability to produce the report was not a public record per se.
But the Court of Appeals panel said the change was not the result of a software upgrade or malfunction and that Schwab “chose to conceal rather than reveal public records”.
Although Schwab has discretion in running his office, the appeals panel said, “Public officials must also follow public policy formulated by the legislature.”
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