(This story has been updated to reflect new developments.)
On Wednesday, the contenders in the Republican race for governor pledged to back the ultimate winner and to make sure their photo-finish primary wouldn’t stall any general election campaign push.
Come Thursday, incumbent Gov. Jeff Colyer made clear that he thought his opponent and state election overseer, Secretary of State Kris Kobach, was exactly the wrong guy to be certifying the results.
Late Thursday night on cable TV, Kobach responded that any such recusal would be only symbolic. After all, he argued, the secretary of state really just reports the results that come in from local officials in each of the 105 counties in Kansas.
But, yes, he told CNN’s Chris Cuomo, if Colyer insists on someone else refereeing the vote count — “he really doesn’t understand the process” — then somebody else can run the official certification.
By Friday, the two deeply conservative Republicans found increasing fault with how the other was reacting to a race where more than 311,000 ballots were cast and Kobach led by just 121 votes. That accounted for differences in what the state had initially reported and results from two counties.
The secretary of state’s office said it would update the numbers Friday to reflect mail-in ballots.
On Friday afternoon, Kobach grudgingly and officially relinquished his role in monitoring the election results.
“It is in the best interests of the citizens of Kansas,” he wrote to Colyer, “that I permit another to perform the duties of the secretary of state until the conclusion of the 2018 primary election process."
Colyer had called on him to hand off that work to Attorney General Derek Schmidt. Instead, Kobach gave the task to his assistant secretary of state, Eric Rucker. Rucker has been a deputy to Kobach through his two terms in office. He also worked for a Kobach predecessor. Colyer fired back through a spokesman that Rucker was the wrong choice because he answers to Kobach.
That official recusal came just hours after Colyer went on Fox News to make his case that Kobach’s role in sorting out the numbers could cast doubt on the the final count.
“Any sort of recusal, probably should have happened a long time ago,” the governor said on Fox. “It’s not an allegation of funny business. ... (But) we want to make sure the law is followed, and that everybody who has voted, that they get their vote counted.”
The night before, Kobach dismissed Colyer’s argument even as he suggested he’d give in.
“There's really no point in doing it,” he told CNN's Chris Cuomo. “The secretary of state doesn't actually have any role in the counting of provisional ballots or in any recount.”
State law required local officials to count any mail-in ballot postmarked by the day of the Tuesday primary and delivered by Friday.
In addition, the count of thousands of more provisional ballots won’t begin until Monday and might stretch to Aug. 20.
Colyer sent an open letter to Kobach late Thursday urging his recusal from the state’s certification of the primary results. He argued that the secretary of state was already sending wrong information to local officials.
For instance, the governor accused Kobach’s office of “informing the public on national television” mid-week that all mail ballots had already been delivered. State law says any received by Friday can still be counted.
Voters who aren’t registered with a political party are allowed, by state law, to cast ballots in the Republican primary. Colyer’s letter cited anecdotal evidence of such voters being forced to cast provisional ballots, but not given the voter registration paperwork as required by law. Provisional ballots are just that, provisional, and require special scrutiny before they can be tallied.
“As a consequence,” Colyer’s letter said, “such provisional ballots cast in the primary election must be construed as evidence of voter intent and must be counted.”
The number of provisional ballots appears to be higher this year than the last primary of a non-presidential election year. In 2014, when more than 350,000 votes were cast in the primary, there were only 6,333 provisional ballots. With a higher vote total this year, 9,000 provisional ballots were cast. Typically, between 60 and 70 percent of provisional ballots pass muster and get counted.
Bryan Caskey, the state director of elections, said Friday morning he’d heard only news accounts of a possible recusal by Kobach — nothing directly from the secretary of state. Caskey said Kansas law spells out no contingency for a secretary of state stepping aside from the count.
Meanwhile, numbers from a handful of counties differed slightly from what the secretary of state had reported (actually trimming down Kobach’s already-tentative lead). Caskey said such adjustments happen every year.
“Election night is unofficial, we’ve preached that for decades,” he said. “It takes a close election for everyone to pay close attention to the process.”
After the counties certify their results — primary night numbers are unofficial — the governor (Colyer), the secretary of state (Kobach) and attorney general (Schmidt) make the results official. A meeting of the three is scheduled for Aug. 31.
“I have a handful of instances across the state, just like every other year, where what we have on election night doesn’t match what the county does,” Caskey said. “This is why we do the verification.”
In a news release early Friday afternoon, Colyer's campaign said it would send representatives to election canvases — the official certification of vote totals — to every county in the state. The campaign called the move “unprecedented.”
Further suggesting the Colyer campaign is willing to contest the final tally, it announced the hiring of former U.S. Attorney Todd Graves. Now in private practice, he has specialized in election law.
“The efforts the past two days by the Secretary of State to discard valid ballots,” the campaign said in a statement, “has made it clear that we need counsel to ensure that all Kansans’ votes are counted.”
Peggy Lowe of KCUR contributed to this report.
Madeline Fox is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @maddycfox.
Scott Canon is digital editor of the Kansas News Service. You can reach him on Twitter @ScottCanon.
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