County Clerk Susan Walker, Bourbon County’s election officer, spoke with FortScott.biz on Aug. 15 about the canvassing process.
The Bourbon County Commission meets at 4:30 p.m. Monday, an hour before its regular meeting, to decide which provisional ballots count.
That meeting is the county canvass. It is the step that turns the Aug. 4 primary from unofficial into official, and in the Republican primary for County Commission District 1, Walker says the ballots it rules on will likely decide who won.
The unofficial count has Mike Hueston at 163 votes and Lyle K. “Pete” Owenby at 160 — a three-vote margin out of 382 votes cast in that race. Lisa Dillon finished with 59.
Walker said in an interview Saturday that roughly nine provisional ballots are still in play.
“I think there’s nine provisionals that will determine that race,” Walker said.
She said she has been at the office night and day getting ready for it. “I know it’s going to be a tough one with the race being so close.”
Who actually does the canvassing
Under K.S.A. 25-3101, “the board of county commissioners of each county shall be the board of canvassers for elections occurring within the county.” The clerk presents the records; the commissioners make the calls.
That creates an obvious problem this year, because two of the five commissioners were themselves on the Aug. 4 ballot — Joe Allen in District 3 and Gregg Motley in District 4 — and a third, Mika Milburn-Kee, was on it as a candidate for Republican precinct committeewoman in Osage Township.
Kansas’s canvassing statutes do not bar a candidate from canvassing an election they ran in; they contain no disqualification provision at all. What they do contain is K.S.A. 25-3102, which covers a member who is dead, “absent, or from any casualty be prevented from serving,” and lets the remaining members “select an elector to serve on the county board of canvassers in such member’s place.” While it is written for absence, not conflicts of interest, Walker said using it this way is permitted.
Walker said she asked the commissioners who were on the ballot to use it anyway.
“I have recommended to the commission that if they were on the ballot that they shouldn’t be involved in the canvass,” she said. “They can be, but for appearances it would be better if you just find somebody to go in your place. And that’s legal.”
Allen and Motley have both named stand-ins, she said. Milburn-Kee told FortScott.biz that Sheriff Bill Martin will represent her at the canvass.
What the board can and cannot see
The canvass runs like a meeting — called to order, then a series of votes on groups of ballots. The preparatory work is already done by the time the commissioners sit down.
“My deputy clerk does all the work behind the scenes,” Walker said. “She goes and looks up registration. She makes sure that they voted in the correct precinct. There’s lots of little things that she does.” (FortScott.biz walked through how the county runs an election, step by step, in June.)
What the board rules on is the reason a group of ballots were set aside, not the ballot. Provisional ballots get pulled for things like a name change, an address change, or a question about whether the person was a registered voter.
The secrecy rule here is important. Under K.S.A. 25-2422, anyone charged with an election duty who intentionally discloses the contents of a ballot — or the name of the voter who cast it — commits a felony, and the only exception is a court order in an election contest. The Secretary of State’s Election Standards warn canvassers and the clerk to be careful not to disclose how any voter voted.
Under K.S.A. 25-409(b) the election judges write the reason for the challenge on the provisional envelope and attach the voter’s registration application to it. Walker said she will tell the board to read the first and leave the second alone.
“When I do the canvass on Monday night, I’m going to instruct the canvassing board that they do not turn the envelope over,” she said. “They look at what the reason was for, and they make their determination based on that.”
That is also why she thinks there is little for either campaign to contest. “It’s going to be really hard to challenge any of them, because they don’t know what’s inside the provisional,” she said. Ballots the board rejects are not opened; K.S.A. 25-3107(a) bars the canvassers from unsealing them, and the Election Standards say they stay sealed and are stored with the other ballots after the canvass.
The partial ballots
A few of the provisionals, Walker thought about three, are partial counts, cast by someone who voted in the wrong precinct.
Those do not get thrown out. State law requires them to be counted as far as they legally can be. Under K.S.A. 25-3002(b)(3), when a voter casts a provisional ballot in the wrong precinct but still inside the same county, every race that appears on both precincts’ ballots counts, and any race that does not appear on both is dropped.
Statewide races and the constitutional amendment question carry over, because they are on every ballot. What changes is the local part.
“It’s the precinct people, the township clerk, and the county level that will get changed,” she said. “If they voted for somebody on their ballot that isn’t on the correct ballot, then that vote does not count. That’s why it’s called a partial count.”
The correction happens Monday. Walker is seating an auditing board to do that work — transferring the valid votes onto a ballot from the voter’s correct precinct, spoiling the original, and checking for write-in votes that need to be caught.
She said an auditing board at a Bourbon County canvass “has never been done in the past.”
Write-ins and coin flips
A write-in campaign can carry a party office on a handful of votes. Under K.S.A. 25-213(d), a person can be elected precinct committeeman or committeewoman on write-ins alone with at least five, provided no one filed for the seat and the person is a qualified elector of that precinct in that party. For a township office the bar is lower still, but it buys something different: three or more write-in votes win the party’s nomination and a place on the November ballot, not the office itself.
Walker said one person has already qualified that way, and the canvass will take it up Monday. A write-in on the provisionals ballots could produce more.
And if two candidates finish level, the tie is broken in the room. K.S.A. 25-3108(a) says that where the county board makes the final canvass, the board “shall determine by lot which person is nominated or elected,” after giving the candidates reasonable notice of when that will happen — and if they do not show up, the board does it without them.
Walker described how she runs that for the party and township contests: a coin flip when two are tied, with the candidate listed first on the ballot calling it, and the coin has to land on the ground. Three or more, and names are drawn.
Asked whether the law specifies what type of coin, Walker said she believes she can use any coin she wants.
The deadlines
K.S.A. 25-3104 puts the canvass between 8 and 10 a.m. on the Monday after the election, but lets the county election officer move it to any business day “not later than 13 days following any election.” The primary was Tuesday, Aug. 4. Thirteen days later is Monday, Aug. 17. The statute also requires that notice of the time and place be published in a newspaper of general circulation and on the county election office’s website before the canvass happens.
Once the board certifies, the result is official. For a local race the county canvass is the final canvass — there is no state board above it. The Secretary of State’s Election Standards say those certified results cannot be changed except by court order in a general-election contest, or through an objection to a primary nomination.
The one mechanism that can still change a count is a recount, and the window is short. Under K.S.A. 25-3107(b), any candidate may request a recount of the ballots for the office they ran for, in all voting areas or only specified ones. The request has to be in writing, filed with the county election officer, no later than 5 p.m. on the day following the last meeting of the canvassers. If the board finishes Monday, means 5 p.m. Tuesday, Aug. 18.
The candidate who asks also has to post a bond, with security approved by the county or district attorney, covering the county’s costs. If the recount flips the race to the candidate who requested it, the bond is not touched and the county pays.
The winner of the District 1 Republican primary advances to the November general election against Democrat Clinton L. Walker, who was unopposed in his primary with 88 votes.