Governor’s Chief Counsel Issues Legal Opinion Regarding Counting of Provisional Ballots

Topeka- This morning the Governor’s chief counsel issued the following opinion, which was sent to all county election officials.

LEGAL OPINION FROM

OFFICE OF THE CHIEF COUNSEL

 

The Governor has requested that I issue this legal opinion regarding interpretation of Kansas election law provisions concerning unaffiliated primary voters casting of provisional ballots.

Kansas law provides that an unaffiliated voter must be permitted to affiliate with a party on primary election day and vote in a party’s primary. K.S.A. 25-3301(c). However, sometimes when an unaffiliated voter seeks to affiliate and vote in a party primary, a poll worker (often a volunteer) simply instructs the unaffiliated voter to fill out a provisional party ballot rather than a party affiliation statement. Kansas law requires canvassers to look to the intent of the voter to correct this technical error by the poll worker and count the primary vote.

Specifically, Kansas law expressly provides that such poll worker errors should be disregarded by the county canvassing board: “No ballot, or any portion thereof, shall be invalidated by any technical error unless it is impossible to determine the voter’s intention. Determination of the voter’s intention shall rest in the discretion of the board canvassing in the case of a canvass.” K.S.A. 25-3002(b)(1). This guiding principle has special importance in elections for governor: “[Even though] provisions of law may not have been fully complied with in noticing and conducting the election . . . the real will of the people may not be defeated by any technical irregularity of any officer.” K.S.A. 25-702(b).

Accordingly, 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. Canvassers should look not to the technical statutory requirement of a party affiliation statement, but rather to the intent of the voter, as is compelled by other statutory law.

 

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Brant M. Laue

Chief Counsel

Office of the Governor

Issued: August 13, 2018