KANSAS CITY, Mo. _ Kansas Gov. Jeff Colyer's lawyers sent a letter to the Johnson County Board of Canvassers on Tuesday arguing that the county needs to include in its final vote tally more than 150 ballots that were discarded because the signature did not match the voter's registration record.
The letter was sent to the board a mere hour before the county was set to certify its primary election results. Colyer trailed Kansas Secretary of State Kris Kobach by 310 votes in the GOP primary for governor as of 3 p.m. CDT.
Colyer won Johnson County by 6 percentage points on Election Day, and his supporters say gaining votes in the county is crucial to the governor's chances of closing the gap with Kobach in the closest gubernatorial primary race in Kansas history.
Johnson County Election Commissioner Ronnie Metsker on Monday told the canvassing board, which is made up of county commissioners, that these ballots were primarily ballots where the voter's spouse or parent had incorrectly signed a ballot instead of the voter.
The letter from Colyer's lawyers argues that Kansas law does not require verification of signatures as a precondition for counting votes and that Kansas law.
"Absent clear evidence of actual fraud, Kansas takes a permissive view that places special emphasis on the right to vote and excuses a voter's failure to follow requirements that do not seriously call into question the voter's intent," said Edward Greim, an attorney at the Kansas City-based Graves Garrett law firm.
Todd Graves, one of the principals in the firm, is a former U.S. attorney and the chair of the Missouri Republican Party. The Johnson County Election Office did not immediately comment on the letter.
The letter contended that Kansas law only requires election officials verify a signature on a request for an advance ballot and that the state law "provides a process that gives voters ample opportunity to cure any non-matching signature ... That way, husbands and wives (or other family members) who innocently and accidentally sign the wrong envelopes can fix the mistake."
Johnson County Commissioner Michael Ashcraft said that the policy of verifying signatures is longstanding when asked about the letter from Colyer's lawyers shortly before he and the other members of the canvassing board began their afternoon meeting.
"They make a good faith effort to do that. I hope it's 100 percent, but I'm not a handwriting expert and I don't review each one of them," Ashcraft said. "But they do and they actually have, I think, three levels of review to verify. I hope it's 100 percent. I suspect it's pretty close to 100 percent."
Ed Eilert, who chairs both the canvassing board and the county commission, also defended the policy.
"If you're not going to match signatures, then I or you, could sign for 10 or 15 people. It doesn't make sense to me," said Eilert, who noted that he is not an attorney.
The letter from Colyer's attorneys was sent the same day a federal judge ruled that a similar New Hampshire law is unconstitutional under the 14th Amendment.
"The act of signing one's name is often viewed as a rote task, a mechanical exercise yielding a fixed signature. A person's signature, however, may vary for a variety of reasons, both intentional and unintentional," U.S. District Judge Landya McCafferty said in the ruling.
McCafferty said that "the signature-matching process is fundamentally flawed. Not only is the disenfranchised voter given no right to participate in this process, but the voter is not even given notice that her ballot has been rejected due to a signature mismatch."
The legal challenge against the New Hampshire was brought by the American Civil Liberties Union on behalf of a 94-year-old woman who is legally blind.
Julie Ebenstein, the ACLU's lead attorney in the case, said that the New Hampshire law disqualified 275 ballots in the 2016 election. She said the state did not give voters an opportunity to verify their identities before discarding their ballots.
"There was really no criteria or training for the local election official to make that determination," she said in a phone call.
The ACLU defeated Kobach in another voting rights case this year when a federal judge ruled unconstitutional a Kansas law that required voters to provide proof of citizenship to register.
The letter is the clearest sign that Colyer may pursue legal action either before or after a recount takes place. The trailing candidate has until Friday to file for a recount, even though several counties will not complete their canvassing process until Monday.
Kansas Senate President Susan Wagle, a Wichita Republican who endorsed Kobach, said on Twitter Tuesday afternoon that the party should unite behind whichever candidate leads at the end of this week.
"Democrats are hoping for a drawn-out litigation process because it's the only way they can win this November. It's time for the @KansasGOP to unite & back whoever comes out on top this week. Let's keep Kansas red!" Wagle said.
Neither Kobach's campaign nor the secretary of state's office immediately commented on the letter before reviewing it.
Wyandotte County Election Commissioner Bruce Newby said his county received one mail-in ballot from a voter whose signature did not match the signature from the voter or anyone in his family.
The Wyandotte County Election Office attempted to contact the voter, but the number on file was disconnected. Newby said he would recommend that the county's canvassing board disqualify the ballot when it meets Thursday.
He said election officials do compare the signature to ensure it matches what is on file even if the name matches and will contact the voter if there are any questions.
"We're looking for the actual person," Newby said. " ... And sometimes that involves a little bit of a fishing expedition."
Patrick Miller, a political scientist at the University of Kansas, said that recent moves by Colyer's campaign, including setting up a hotline for voters who experienced problems on Election Day, are signs that the governor's team is building a legal case.
"That is purely to gather evidence for court proceedings," Miller said.
"I think given how close the race is and also given that he's the sitting governor and that's surely something he wants to hold onto ... I would pursue all of my options," Miller said.
That could include requesting a recount or filing a lawsuit in an effort to compel counties to count some of the ballots they've discarded.
Miller said Republicans have a time cushion to figure out the winner because of the party's registration advantage and independent Greg Orman's entry into the race, which is expected to draw votes from Democratic nominee Laura Kelly.
"They can afford a delay, whether it's a recount or some court cases that from their perspective are hopefully resolved quickly _ that's not going to hamper them too much in the general," Miller said. "If Colyer has the money to afford it, he certainly has the time. Why not exhaust the opportunity?"
