Judge: Kansas election database function not public record

A judge found Kansas' secretary of state did not violate the one records law by removing an election database function showing which provisional ballots were not counted.


State News

October 15, 2021 - 4:03 PM

BELLE PLAINE, Kan. (AP) — Kansas’ Republican secretary of state did not violate the state’s open records law by ordering the removal of an election database function that generates a statewide report showing which provisional ballots were not counted, a judge ruled.

The decision Wednesday by Shawnee County District Judge Teresa Watson comes in a lawsuit filed by voting rights activist Davis Hammet, who is the president of Loud Light, a nonprofit that strives to increase voter turnout. The group helps voters fix issues that led them to cast provisional ballots so that their votes are counted.

Voters are given provisional ballots if they don’t appear to be registered, if they fail to present the required identification or if they are trying to vote at the wrong polling place.

The judge sided with Secretary of State Scott Schwab in finding that the ability to produce a statewide provisional ballot detail report in the election database is not a public record as defined by the Kansas Open Records Act. Watson found that eliminating that functionality does not violate the state law as written. 

The lawsuit contended Schwab altered the software to hide election records. 

“Hammet understandably raises the question about why Schwab would purposely eliminate the ability to expediently and inexpensively produce a statewide provisional detail report (in the state database), even if the Secretary of State’s office has no use for it,” according to the ruling.

But the judge wrote that Schwab’s “motives and reasoning are only conjecture” at this point in the litigation and are not material to the purely legal questions on summary judgment.

Watson also rejected Hammet’s argument that Schwab destroyed government records by removing the program that allowed his office to generate the report, because functionality itself is not a government record.

Hammet won a separate lawsuit last year that forced Schwab to turn over to him the names of voters who cast provisional ballots in the 2018 general election, including whether their votes were counted. 

Schwab complied with the court’s order for the 2018 data, then instructed the outside firm that manages the database to end the secretary of state’s access to the statewide provisional ballot detail report. The state’s 105 counties can still run those reports, but only for their own local data.

Hammet said he planned to meet with his lawyers to explore his options, and would comment later.

In an emailed statement, Schwab’s office said it appreciated the ruling .

“The decision to remove the provisional ballot detailed report function was based in a desire to provide accurate and complete data as a state agency,” according to that statement. “The function produced a report that was incomplete and could easily have led to misinformation, something the Secretary of State’s office strives to prevent.”