By Bryan Lowry, Hunter Woodall, Lindsay Wise, Steve Vockrodt and Allison Kite
Kansas Secretary of State Kris Kobach said in a cable news interview Thursday night that he plans to recuse himself from the vote tally process in the face of pressure from Kansas Gov. Jeff Colyer and mounting confusion over vote totals.
Kobach said that he would recuse himself in an interview with CNN hours after Colyer had sent a letter demanding that Kobach refrain from instructing county election officials on the counting of ballots in the primary race for governor on a day when the vote total narrowed to roughly 100 votes as multiple counties reported that vote totals were incorrect.
"I'll be happy to recuse myself. But as I say, it really doesn't make any difference. My office doesn't count the votes. The counties do," Kobach said in an interview with host Chris Cuomo.
Colyer spokesman Kendall Marr told The Kansas City Star that the governor had not been notified by Kobach or his office that he intended to recuse himself. He said Coyler's team found out about it through news reports.
"We don't have an official recusal," Marr said. "We want to see what that looks like tomorrow. We want to make it's not a symbolic recusal. The secretary of state has a substantive role in this process and the recusal needs to be substantive."
Marr added that "on top of the recusal, we're also asking that the secretary of state stop giving incorrect information to the counties, particularly related to the mail-in ballots."
Colyer released a letter at 5 p.m. calling on Kobach to recuse himself from providing advice to local election officials. The letter comes after multiple counties reported that the election night totals on the secretary of state's web site were inaccurate, further clouding the results of a historically close election.
"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 a letter.
Marr explained in a phone call that the campaign has heard that Kobach's office told county clerks to disregard ballots with a smudged postmark. Marr said that ballots received before a Friday deadline need to be counted.
Jamie Shew, the clerk of Douglas County Clerk, said the "recommendation was they could not be proven so could possible not count, but those would still be taken to the board of canvassers for consideration instead of the Friday count." Bryan Caskey, the state director of elections who works for Kobach, also said he had only seen news reports about the secretary's comments and had no first hand knowledge about what recusal would entail.
The call for recusal was Colyer's biggest shot at Kobach since Tuesday's primary ended without a clear result and a major indication that the election may ultimately be decided in a courthouse.
Kobach said Wednesday that he had no plans to recuse himself if a recount happens after the provisional ballots are counted. He said his office plays only an administrative role in that process and does not actually count ballots.
"I think I gave him the idea," Kobach said during his CNN interview. "I said to the press about a day or two ago there's really no point in doing it because the secretary of state doesn't actually have any role in the counting of provisional ballots or in any recount."
Around the same time news broke that Colyer received 100 more votes in a western Kansas county than previously reported, the governor's campaign announced the establishment of a voter integrity hotline. Hours later, additional counties reported that votes had been incorrectly reported on Tuesday.
"We've received countless reports that voters experienced issues when they voted on Tuesday. Many Colyer voters had difficulties finding his name on the ballot, were forced to vote on provisional ballots, or were turned away outright for unknown reasons," Marr said in a news release.
Patrick Miller, a political scientist at the University of Kansas, said the hotline was a clear indication that Colyer's campaign is preparing for a potential court case.
"Otherwise, what are you going to do with the hotline? You have to go to the courts," Miller said.
He said that Democrats and the NAACP often use similar strategies in elections in which there are concerns about voter intimidation.
In an election this close, he said, campaigns will fight for every individual vote possible.
"You often will sue over intimidation, errors in the voting process or something that allows you to go into court to claim that something was wrong in the voter process," he said.
The hotline announcement coincided with the discovery of 100 more votes for Colyer in Thomas County near the Colorado border.
Thomas County Clerk Shelly Harms confirmed that Colyer received 522 votes on election day rather than the total of 422 that had been reported by the secretary of state's office.
She shared a scan of the form she submitted to Kobach's office, which clearly showed 522 votes for the governor, and said the secretary of state's office was responsible for the discrepancy, not the county.
Caskey said in a phone call that he was "not assigning blame" for the error.
"I'm just saying there was a discrepancy," he said.
Caskey said the missing votes were discovered through the secretary of state's office's routine verification process, which asks each county to confirm its reported vote total.
Kobach's total of 466 in the county remained unchanged.
Caskey said that the secretary of state's office would update its results page Friday. "We will adjust at some point. We're not doing it on the fly," Caskey said.
Later Thursday, Haskell County confirmed that its reported vote totals also were incomplete. Colyer received 220 votes in the county, which was 117 more than previously reported. Kobach received 257 votes in the county, which is 147 more than previously reported.
Deputy Haskell County Clerk Emily Aragon said that the county was still missing a precinct when it sent initial results to the secretary of state's office Tuesday night. The county sent updated results later that night, but the hundreds of new votes were not made public until Thursday.
She stressed that these results are still unofficial until the county's canvas board meets.
Wyandotte County's vote totals also didn't match up with the numbers posted on the secretary of state's web site on Thursday.
Throughout Thursday, the Kansas secretary of state listed Kobach's vote from Wyandotte County at 2,737, while Colyer fetched 1,538.
But as of Thursday at 10 p.m., Kobach had picked up 32 votes from Wyandotte County's tally, compared to the information posted on the secretary of state's web site. Colyer picked up 26 in an election where, truly, every vote will matter.
Rawlins County's web site also differed from the state web site, showing two more votes for Colyer and four more votes for Kobach than what was previously reported.
Caskey confirmed that Wyandotte County alerted him late Thursday about "a discrepancy of a handful of votes." He was not aware of any errors with the Rawlins County total, but said that it's possible.
If the numbers on the county web sites are accurate, the difference between the two candidates stood at 129 votes as of Thursday night barring any additional changes.
Totals posted on the secretary of state's web site on Friday will include mail-in ballots, Caskey said, meaning the gap between the two candidates could possibly narrow or widen again.
Kansas law requires counties to count mail-in ballots that are received through Friday as long as they were postmarked by the end of election day.
He said the website would be updated throughout the day, so Kansans can expect the total to change as mail-in ballots are counted in each of the state's 105 counties.
The Friday totals will not include provisional ballots, which were not counted on the day of the election.
The state's two most populous counties, Johnson and Sedgwick, will review a combined 3,700 provisional ballots when they hold their canvassing meetings on Monday.
But even then the overall vote total in the race will remain unknown.
Three of the state's other most populous counties, Wyandotte, Douglas and Shawnee, won't hold their canvas meetings until Aug. 16. Counties are allowed to continue canvassing until Aug. 20.
In one more development Thursday, Kobach suggested in a statement to The Star that noncitizens could have voted in the primary election.
Earlier this year, Kobach lost a high-profile federal court case when a federal judge struck down a state law, which he had designed, that required voters to provide proof of citizenship, such as a birth certificate or passport, to register to vote.
"It was established at trial that the judge's preliminary injunction allowed multiple noncitizens to register in Kansas. Her final order undoubtedly had the same effect, but we do not know how many of those noncitizens voted on Aug. 7," Kobach said in his statement Thursday.
Kobach's campaign spokeswoman, who also works as his official spokeswoman, did not immediately respond to a follow-up question about whether Kobach was aware of the new totals in Thomas County when he made the comment about noncitizens.
The comments from both campaigns expressing concerns about the integrity of the election results contrast sharply with a statement made by Kansas' state GOP chair Kelly Arnold earlier in the day about trusting the electoral process.
"Everybody knew this would be a close race. Nobody thought this would be this close a race," Arnold said. "Everybody does trust the process. At this point, there's not any evidence that any shenanigans happened."
Arnold said such a close primary has never happened in a governor's race before but that party officials are used to tight contests in legislative races.
In the 104th Kansas House district in Reno County, for example, challenger Paul Waggoner currently leads incumbent Rep. Steve Becker by a single vote in the GOP primary before any provisional ballots have been counted.
The party must maintain neutrality in the race between Colyer and Kobach. Arnold said he waited until Thursday to reach out to either candidate.
He said the party would be continuing on with its turnout strategy for the general election despite the absence of a clear nominee. Arnold said the party would actually be using the closeness of the primary race as a way to persuade GOP voters of the importance of turning out in November.
He predicted a recount would have to take place before the party can declare a winner in the primary.
"If the final numbers are as close as it was on election night, I would expect a recount to happen," Arnold said. "You don't campaign for the past year-plus ... and not be 100 percent sure what that final result was."
(c)2018 The Kansas City Star (Kansas City, Mo.)