TOPEKA, Kan. — Kansas' top elections official violated the state's open records law when he had office computer software altered so that it could no longer produce data sought by a voting-rights advocate, the state Court of Appeals ruled Friday.
The decision directed a trial court judge to order Secretary of State Scott Schwab to reverse the software change in the state's voter registration system so that it can again produce a statewide report on provisional ballots. Voters receive provisional ballots if they don't appear to be registered, fail to present required identification or try to vote at the wrong polling place. Their ballots are set aside to be reviewed later by local officials, who determine whether they will be counted.
Davis Hammett is founder of the voting-rights group Loud Light, which helps voters fix issues that led them to cast provisional ballots so that their votes are counted. It also researches voting-rights issues and lobbies the Legislature.
Hammett first sought the information after the 2018 general election, then again repeatedly in 2020. Schwab's office provided it free of charge until the fall of 2020, when Schwab had the vendor maintaining the voter registration system turn off the feature that produces the reports.
"The report feature may have been of no use to the Secretary but it was useful to Hammet and the public," Judge Stephen Hill wrote for the three-member appeals panel. "And that is the point of open public records."
Concerns from voting-rights advocates about how provisional and mail-in ballots are handled grew during the tenure of Schwab's predecessor, conservative Republican Kris Kobach, an advocate of strict voter ID laws. In 2016, Kansas threw out at least three times as many ballots as similarly sized states.
A political outcry over hundreds of discarded mail-in ballots statewide in the 2018 primary - when Kobach won the GOP nomination for governor by 343 votes - led to a 2019 law requiring election officials to notify voters before their mail-in ballots are thrown out because of problems with signatures.
While Hammet praised Friday's ruling and predicted it will help others seeking state documents, he said it was frustrating to have to go to court to get records that help his group pinpoint potential problems in how provisional ballots are handled.
"It helps us create better state laws," Hammet said. "We were shut off from doing that."
Schwab is running in the Aug. 2 Republican primary against a challenger from his right who promotes baseless election fraud theories and accuses Schwab of not being transparent. A Schwab spokesperson said in email that his office was reviewing the decision.
The secretary of state argued in 2019 that provisional ballot reports contained confidential information and were not public records. Hammet sued him, and District Judge Teresa Watson in Shawnee County declared the reports public records. Schwab turned reports over to Hammet multiple times.
The secretary of state had the voter registration system's software altered in September 2020. When Hammett requested another report about three weeks later, Schwab's office suggested he get the data from the vendor - at a cost of $522.
When Hammet sued Schwab again, Watson sided with Schwab and declared that the ability to produce the report was not a public record itself.
But the Court of Appeals panel said the change didn't result from a software upgrade or malfunction and Schwab was "choosing to conceal rather than reveal public records."
While Schwab has discretion in running his office, the appeals panel said, "Public officials must also respect the public policy formulated by the Legislature."
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