By Bryan Lowry, Steve Vockrodt, Jonathan Shorman and Hunter Woodall
No law requires Kansas Secretary of State Kris Kobach to recuse himself from a recount in the governor's race, but legal and political experts say that he should to maintain trust in the election.
Republican legislative leaders said Wednesday morning that a recount is almost certain and could possibly take weeks. The uncertainty facing the state drew comparisons from lawmakers and attorneys to the 2000 presidential election, which saw the U.S. Supreme Court halt a recount effort in Florida after several weeks.
Kobach, the state's top election official, narrowly led Gov. Jeff Colyer in the Republican primary by a mere 191 votes Wednesday morning after each of the state's 105 counties had posted election returns after technical difficulties in Johnson County delayed results on election night.
Kobach's office would oversee any statewide recount after counties tabulate provisional ballots. Kansas attorneys who work in the election field say no law requires him to recuse himself from that process, but that legal and political ethics should guide him to do so if a recount takes place.
"There's nothing in the statute that says the secretary has to recuse himself," said Mark Johnson, a partner at the Kansas City law firm Dentons who has experience in election law. "But I would have to believe that in a situation like this, the secretary would be well advised to remove any appearance of impropriety."
Wink Hartman, Kobach's running mate, said Wednesday it "is totally up to Kris" whether he should recuse himself from a recount.
"He is the secretary of state still, so I think he'll have to make that decision on what's best. And the one thing I am confident of is Kris will make the best decision for the people of Kansas," Hartman said ahead of a campaign event in Topeka.
Rep. John Carmichael, a Wichita Democrat, said that Colyer's campaign would have no legal recourse to force Kobach to recuse himself.
"My opinion is the recusal argument is a political argument as opposed to a legal argument," said Carmichael, an attorney who has provided election protection services to numerous national and state campaigns for two decades.
"He is the state's chief election officer and there's an inherent conflict of interest in that, but that's the way the statute is written."
Carmichael said that "fairness would dictate that Mr. Kobach personally recuse himself from that process and allow another member of his staff, who is not a candidate, to oversee that process."
Kobach's office did not immediately comment on whether the secretary intended to hand over administration of the recount to a deputy.
He has recused himself from deciding election disputes in the past because of a conflict of interest, including in 2014 when he abstained from a residency objection hearing against U.S. Sen. Pat Roberts because he served on the senator's campaign committee.
Johnson, a member of the legal team that defeated Kobach in a federal case involving the ACLU earlier this year, said the process of conducting a recount is a public process; the public, the media and certainly the campaigns would pay close attention to the proceedings.
"Go back and look at the pictures of the Florida recount," Johnson said, referencing the disputed Florida recount in the 2000 presidential election between George W. Bush and Al Gore. "It may look like that."
Bob Beatty, a political scientist at Washburn University, called the situation unprecedented.
"He may not like this, but Colyer needs to be like Al Gore... and immediately appoint or ask representatives to be there for every stage of the process. He had representatives watching everything," Beatty said.
Colyer indicated in a statement Wednesday morning that he had no intention of conceding the race, which remains too close to call before any provisional ballots have been counted.
"Given the historically close margin of the current tabulation, the presence of thousands of as yet uncounted provisional ballots and the extraordinary problems with the count, particularly in Johnson County, this election remains too close to call," Colyer said in a statement.
The campaign noted that in the 2014 primary there were 6,333 provisional ballots cast.
"We are committed to ensuring that every legal vote is counted accurately throughout the canvassing process," Colyer said.
On Wednesday morning, bleary-eyed Republicans gathered at a Topeka hotel for a unity breakfast. Although Colyer and Kobach did not attend, the governor's race hung over the event.
Kansas Senate President Susan Wagle, a Wichita Republican, said there is "no question" a recount will take place.
"I think back to the days in Florida when the technology was different and George Bush had his first election and they were looking at those hanging chads and trying to count votes. I think with our new technology, we will have a governor here in a few days that we will all unite behind," Wagle said.
Kansas House Speaker Ron Ryckman, an Overland Park Republican, acknowledged that some people felt frustration at Johnson County over its problems counting votes.
"When I first came to Topeka, I didn't know that JoCo was a four-letter word. This morning, walking into this breakfast, I felt it again," Ryckman said to laughs.
He indicated a resolution in the governor's race could take weeks.
"We're going to have a few days, maybe weeks ahead of us before we know our ultimate candidate for governor," Ryckman said, adding that Republicans are committed to supporting that person.
What if Kobach did not recuse himself in a recount affecting his own political future?
Johnson said "it would be surprising, simply for the purposes of appearance. If he did not recuse himself I don't think he could exercise any influence in the count because it's going to be such a public process."
Rick Hasen, an election law expert at the University of California, Irvine School of Law, said in an email that "it would be good practice even if not required by state law for an election official to recuse from any recount or legal proceedings surrounding his or her own election efforts. A longstanding English and American tradition is that 'no man should be a judge of his own case.' That should apply here."
Hasen added that the issue "only arises because we have partisan election officials running our elections. In most other advanced democracies, there are nonpartisan professionals."
(c)2018 The Kansas City Star (Kansas City, Mo.)