Governor's demand pushes Kobach out of Kansas vote count - KCTV5 News

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Governor's demand pushes Kobach out of Kansas vote count

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Kansas Gov. Jeff Colyer Kansas Gov. Jeff Colyer

Update: On Friday, the Colyer for Governor campaign announced they plan to have a representative at all 105 canvases in Kansas. 

The campaign will be monitoring the counties to ensure they count all mail-in ballots received by Friday. The campaign will also be monitoring to ensure unaffiliated voters who voted by provisional ballot have their votes counted.  

"We are aware the Secretary of State's office is advising county clerks to discard mail in ballots that the law is clear should be counted," said Kendall Marr, spokesman for Governor Colyer. "County canvass boards have a critical role to play in this process.  It is vital they treat Kansans fairly and count their votes. Receiving a ballot on Wednesday or Thursday by the Post Office is a clear indication from the Post Office that it was mailed on Tuesday or earlier."


TOPEKA, Kan. (AP) - Kansas Secretary of State Kris Kobach said Thursday that he will remove himself from the further counting of votes while his Republican primary battle with Gov. Jeff Colyer hangs in the balance, describing it as a "symbolic" step in response to a public demand from Colyer.

The governor publicly accused Kobach, the state's top elections official, of giving county election officials information about the handling of yet-uncounted ballots "inconsistent with Kansas law." He demanded in a letter to Kobach that Kobach stop advising county officials and have the state's attorney general do it instead.

The close contest between the embattled governor and a conservative lightning rod took another acrimonious turn as Kobach's already tiny lead shrunk from 191 votes to just 121 out of 311,000 ballots cast, after two counties reported discrepancies between their tallies and what Kobach's office reported on its website.

Kobach needled Colyer in a Fox Business network appearance Thursday evening, saying it would be "pointless" to remove himself from the process because the state's 105 counties handle the counting of ballots but he might do so just to make Colyer "feel good."

But a little more than an hour later, questioned on CNN, Kobach said: "I said, 'Of course, if he wants me to, I would," and he has said, 'OK, I do want you to,' so I will."

The counting is not complete because state law says mail-in ballots that are postmarked Tuesday can be accepted by the counties as late as Friday. And county officials still must review perhaps several thousand provisional ballots, given to voters at the polls when their eligibility is in question. They have until Aug. 20 to finish.

Colyer released his letter to Kobach after his campaign announced that it had set up a "voting integrity" hotline and urged people to report their complaints about the election. Colyer spokesman Kendall Marr said it received "countless" reports, adding that he personally knows of several dozen.

"It has come to my attention that your office is giving advice to county election officials - as recently as a conference call yesterday - and you are making public statements on national television which are inconsistent with Kansas law and may serve to suppress the vote in the ongoing primary election process," Colyer said in his letter to Kobach.

In the letter, Colyer questioned whether Kobach was advising counties not to count some mail-in ballots, including those with missing or unreadable postmarks, even if they arrived by Friday. He also said he heard reports that some unaffiliated voters - who by law can declare an affiliation at the polls and vote in a primary - were given provisional ballots instead of the regular ballots they were due.

And Colyer wrote that circumstances "obviously increase the likelihood that one of the candidates may seek a recount, or even the possibility of litigation."

Kobach, a vocal advocate of tough immigration and voter identification policies, advised Trump's campaign in 2016 and the White House afterward and served as vice chairman of Trump's now disbanded commission on election fraud. Trump tweeted his endorsement of Kobach on Monday, less than 24 hours before polls opened.

But Kobach's no-apology, hard-right conservatism has alienated even some fellow Republicans, and Colyer has sought to project a more mild-mannered, steadier style.

As secretary of state, Kobach sets rules, gives county officials guidance and appoints election commissioners in the state's four most populous counties. Kobach spokeswoman Danedri Herbert said he would respond to Colyer's letter Friday.

Kobach told reporters Wednesday that he knew of no significant reports of irregularities in Tuesday's primaries, outside of long delays in reporting results from the state's most populous county. There, Johnson County in the Kansas City area, results were delayed by problems with uploading data from new voting machines.

But the totals for the GOP primary for the governor's race in at least two counties posted on the secretary of state's website did not match the totals from the counties themselves.

First, in Thomas County in the state's northwest corner, the final, unofficial results posted on the secretary of state's website show Kobach winning there with 466 votes to Colyer's 422. But the tally posted by the Thomas County clerk's office shows Colyer with 522 votes, or 100 votes more, a number the clerk confirmed to The Associated Press on Thursday.

Bryan Caskey, state elections director, said county officials pointed out the discrepancy Thursday following a routine request for a postelection check of the numbers to counties by the secretary of state's office.

"This is a routine part of the process," Caskey said. "This is why we emphasize that election-night results are unofficial."

Thomas County Clerk Shelly Harms said it's possible that her handwriting on the tally sheet faxed to the secretary of state's office was bad enough in the rush of primary-night business that the number for Colyer wasn't clear. But a copy she provided to the AP showed that the number for Colyer is unambiguously "522."

"They just misread it," she told the AP.

On CNN, Kobach suggested the mistake was among the kind of "keystroke errors" that happen routinely and are caught later.

And in Haskell County, elections officials said they had not initially reported returns from one precinct. Once those votes were added, the net result was a gain of 30 votes.

On Friday afternoon, Kobach released the following letter in response to Colyer: 

"August 10, 2018

Governor Jeff Colyer

Capitol, 300 SW 10th Ave., Ste. 241S

Topeka, KS 66612

Dear Governor Colyer:

Thank you for your correspondence. While I am certain that your motivation in writing me is sincere, unfortunately your campaign letter expresses incorrect allegations that my office has given inaccurate advice to local election officials regarding the handling and counting of mail-in and provisional ballots.

Although the Kansas secretary of state does not participate in the counting of ballots-which is done at the county level-state law does establish the secretary of state as the chief elections official of Kansas. As the duly elected secretary of state and Kansas's chief elections official, I am obligated by state and federal law to provide our election officials with uniform guidance and advice concerning the administration of elections. No other state office is permitted to exercise these responsibilities under law. Your letter suggests that I should violate those laws and transfer those responsibilities to the attorney general. I will not breach the public trust and arbitrarily assign my responsibilities to another office that is not granted such authority by the laws of Kansas.

Your letter also suggests that you are not familiar with the details of how elections in Kansas are conducted. Several critical stages of this process are outside my direct authority. The care, custody, control, and processing of voted ballots remain the sole responsibility of the 105 county election officers. Counting ballots and determining intermediate election results for state and federal offices are the responsibility of the 105 county boards of canvassers (the county commissioners). Our local election officials have earned a reputation of providing Kansans with honest and accurate elections. I have every confidence that these local officials will carry out their obligations in this tradition of excellence. I assume that, as an elected official, you would have the same confidence. However, your suggestion that these same county election officials need to be reminded by you to abide by federal and state election laws does nothing to increase the public's trust in the elections process and is beneath the office of governor.

Guidance from my office has been issued to county election officials regarding the processing of mailed ballots and provisional ballots. This guidance is consistent with the guidance provided in years past and is in accordance with state law. Any guidance given to the county election officials regarding these matters is available to you upon request.

Your suggestion regarding the Kansas Rules of Professional Responsibility for attorneys is particularly puzzling. You appear to believe that an attorney cannot serve in any role concerning an election in which he is a candidate. Your imagined rule would effectively mean that an attorney could never be secretary of state and run for re-election or for another office. It would also mean that neither the attorney general nor a governor could be an attorney, because Kansas law makes them members of the State Board of Canvassers. As governor of Kansas, your unrestrained rhetoric has the potential to undermine the public's confidence in the election process. May I suggest that you trust the people of Kansas have made the right decision at the polls and that our election officials will properly determine the result as they do in every election.

Prior to your letter, I had already stated publicly that I would recuse myself if asked. Although I would discharge my duties ethically, impartially, and responsibly, I have carefully considered your request and have decided that it is in the best interest of the citizens of Kansas that I permit another to perform the duties of the secretary of state until the conclusion of the 2018 primary election process. Kansas statute permits the assistant secretary of state to perform the tasks of the secretary of state in certain circumstances. Therefore, Assistant Secretary of State Eric Rucker will carry out my election responsibilities, including membership on the state canvassing board and the state objection board. Mr. Rucker has served ably as Assistant Secretary of State during the eight years of my administration. He also served Kansas Secretary of State Jack Brier as his Deputy Assistant Secretary of State for Elections. I have full confidence in Mr. Rucker's ability to carry out these responsibilities.

Finally, I would like to remind you that you also have a role in the election process. As you are well aware, you are a member of the state canvassing board; and the Lieutenant Governor is a member of the state objection board. I have confidence that Lieutenant Governor Mann and you would discharge your duties in a fair and impartial manner; therefore I will not take the step of publicly asking you to step down from these positions. However, should you decide to follow my lead and address any appearance of a conflict of interest by removing yourselves from these boards, please let my office know immediately and let my office know who will serve on these boards in your place.

Cordially,

Kris W. Kobach

cc: All Kansas County Election Officials

Attorney General Derek Schmidt"

Copyright 2018 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. KCTV5 News contributed to this report.

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