The ACLU has filed a lawsuit against Johnson County and Ronnie Metsker, county election commissioner, after the county declined to release lists of provisional and mail ballots from the recent primary election.
The lawsuit seeks to see if provisional ballots were counted correctly and check advance ballots that may have been rejected because their signature didn’t match their voter records. According to Lauren Bonds, Legal Director of the ACLU of Kansas, the lawsuit does not pursue private information but instead seeks greater transparency in an effort to let people know if their vote was counted.
The ACLU argues that closing the lists conflicts with the National Voter Registration Act. That act requires states to maintain and make available for public inspection the names of registered voters and whether they voted in the two most recent federal presidential elections.
The suit also cites multiple statutes stating that this information should be accessible for review. The ACLU also claims Metsker’s denial of the records appears to contradict the Secretary of State’s own practices – that office discloses an individual voter’s history online, including whether a voter cast a provisional ballot.
Johnson County was a deciding factor in handling the Republican Party’s gubernatorial nomination between Secretary of State Kris Kobach and Governor Jeff Colyer. Colyer conceded the race to prevent a formal recount effort and the race was decided by only 345 votes.
The ACLU filed the lawsuit last week in Johnson County District Court, on behalf of Davis Hammet, president of Loud Light, a civic engagement nonprofit focusing on increasing voter turnout, and named Metsker as defendant. Metsker denied a request by Hammet to review the voting documents under the Kansas Open Records Act, according to the lawsuit.
Metsker was recently reappointed election commissioner by Kris Kobach, secretary of state; however, he is paid thru Johnson County. While the Election Office is funded through county taxes, the county commission has little oversight in election matters, according to the 2018 Session Laws of Kansas (Sec. 6, KSA 19-3424) “the election commissioner, in the conduct of elections, shall operate under the general supervision of the secretary of state and shall comply with the statutes, rules and regulations and standards and directives that relate to the registration of voters and the conduct of elections.”
The Secretary of State was not named in the lawsuit because that office had repelled a previous request, and it was the JOCO Election office that was the original point of request, not the Secretary of State’s office, said Mark McCormick, ACLU of Kansas Director of Strategic Communications. “Also, the election commissioner is the record custodian,” he said.
As to who will pay to defend the lawsuit, McCormick said, “It is our understanding that the election office has full-time counsel that could represent them, so it is not as if they’d have to go out and hire representation. Also, we, the ACLU of Kansas, are not requesting that our legal fees be paid for nor are we seeking a fine against the elections office if we prevail.”
Jody Hanson, Johnson County director of public affairs, declined comment on the lawsuit.