KANSAS CITY, Mo. _ Johnson County will accept nearly 1,500 provisional ballots either in full or in part, including dozens cast by unaffiliated voters who were incorrectly told by poll workers to cast provisional ballots.
The ballots could tip the balance in the GOP primary for governor. Kansas Secretary of State Kris Kobach and Gov. Jeff Colyer were separated by a mere 110 votes as of early Monday.
The Johnson County Board of Canvassers voted unanimously Monday to fully accept 1,176 ballots based on the recommendation of the county's election commissioner, Ronnie Metsker.
This included 57 ballots from unaffiliated voters who were incorrectly told on Election Day to cast provisional ballots. Kansas law restricts voters from switching parties on Election Day, but unaffiliated voters are allowed to declare a party at the polls.
The canvassing board, which is made up by the county's commissioners, also voted to accept 275 ballots in part and to disregard 898 ballots for a variety of reasons. The board will reconvene on Tuesday afternoon to certify the county's election results after the new ballots have been counted.
Colyer's campaign has expressed concerns since last week about unaffiliated voters who were incorrectly instructed to vote provisionally instead of declaring a party and casting a normal ballot.
Metsker said this happened in Johnson County.
"We had one (polling) location where that happened," Metsker said. "These are citizens. We train them. We train them hard. There were a number of problems at that location."
The unaffiliated voters were part of a larger group of 264 voters in Johnson County who were incorrectly told by poll workers to cast provisional ballots. All of those votes will count, Metsker said.
The county's decision to count the unaffiliated voters would seem to put the county at odds with a news release from Assistant Secretary of State Eric Rucker, the deputy whom Kobach has tapped to oversee the counting process in the closest primary race for governor in the state's history.
Rucker said in an email late Sunday that "there has been considerable public discussion regarding whether unaffiliated voters can participate in Kansas party primary elections."
He then attached a series of legal instructions including that "if an unaffiliated voter does not complete a party affiliation document, that voter is not entitled to vote at a party primary election."
This prompted a response from Brant Laue, Colyer's chief counsel.
"Kansas law requires that provisional ballots cast by unaffiliated voters in a primary election be construed as evidence of voter intent and must be counted," Laue said in a letter on letterhead from the governor's office.
Metsker, who was appointed by Kobach, said there was no conflict between the county's decision to count the unaffiliated voters and the guidance from the secretary of state's office.
"The memo that I did get this morning from Rucker, we're good. There's nothing about what he did that's askew from what he's telling us," Metsker said. "That's the first thing we did was double-check that part. We're good in Johnson County. I can't speak for others."
Clay Barker, Colyer's special assistant, said the county appeared to ignore Rucker's guidance on the issue, a development that pleased the Colyer campaign.
"It would appear to me that the county commissioners with counsel from their elections commissioner and legal counsel decided to ignore it and do what they've done in the past, which is count ballots because they show a poll worker's mistake," said Barker, an attorney who previously served as executive director of the Kansas Republican Party.
"Obviously, they'll have some impact because of how close the race is. We just won't know until tomorrow at 4 p.m."
Keith Mark, the Kansas attorney who introduced Kobach to Donald Trump Jr., was on hand to observe the proceedings on behalf of the Kobach campaign. He had no objections to any of the actions taken by the canvassing board.
"The secretary's very confident that the election board fairly interpreted the law that has been established for a long time. Nothing was new in this election," Mark said.
Mark noted that he did not get to vote in the GOP primary because he is a registered Democrat. He declined to say which candidate he voted for in that party's primary.
The majority of voters who will only have their ballots partially counted went to the wrong polling place on Election Day. Their votes for all statewide races, such as the primary for governor, will count.
Among the 898 votes that were thrown out Monday were four mail-in ballots that lacked a postmark or had an illegible postmark.
Kobach's office advised counties that these types of ballots could not be counted last week, which prompted Colyer to call on the state's chief election official to recuse himself from the process.
An additional 59 people will not have their votes counted because they did not provide photo ID as required by Kansas law. And 272 people tried to vote in the other party's primary.
Unlike unaffiliated voters, people who are registered Democrats or Republicans must switch parties by the filing deadline for candidates, a change to election law that GOP lawmakers passed in 2014 to prevent Democrats from voting in Republican primaries.
And while unaffiliated voters who showed up the polls will see their votes counted, there were 35 mail-in ballots that will not count because no party affiliation was declared.
One voter died after casting a ballot, which prompted the election office to recommend the vote be treated as invalid.
"We only had one of those. Thank God," Metsker told the commissioners.
