A U.S. District Court ruling handed down Wednesday in Kansas granted disclosure of the names of provisional ballot voters to candidates in a tightly contested state house race, thereby clarifying the scope of voter privacy protection under federal law. The ruling was issued in response to a federal lawsuit filed by Kansas Secretary of State Kris Kobach to prevent disclosure of the names. Kobach argued that federal election law protects voters’ identities from disclosure, citing § 302(a) of the Help America Vote Act (HAVA): “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.” U.S. District Court Judge Marten rejected Kobach’s argument, reading the plain text of the statute to protect only disclosure of how someone voted, not the identit of the voter. The day following the election, when unofficial results showed incumbent Democratic Representative Ann Mah of Kansas’ 54th House district trailing her Republican challenger by 27 votes out of a total 10,633 cast, she issued a request for the names of the individuals who had cast provisional ballots in her district. That afternoon, Kansas Secretary of State Kris Kobach filed a lawsuit in federal court seeking to prevent disclosure of the names.
Mah requested the names of provisional ballot voters in Osage, Douglas and Shawnee Counties through the Kansas Open Records Act (KORA). The Douglas County Election Commissioners were the first to comply, releasing a list of less than thirty names. That disclosure prompted a memo from Kobach’s office instructing the state’s county election officers to deny any further requests for names, claiming not only that KORA excludes these requests, but that disclosing the names would violate federal law.
Osage County Commissioners opted not to release the names, but instead counted and certified the provisional ballots. Of the nearly 90 provisional ballots, the 53 added resulted in a net gain of 17 for Corbet, increasing his lead to 44. (The final results of Douglas County’s provisional ballot count resulted in a net gain of 2 for Rep. Mah, narrowing Corbet’s lead to 42 votes.
Shawnee County Election Commissioner Andrew Howell refused to release the names, citing a Kansas statute requiring a court order for such a request. Mah then filed a lawsuit in Shawnee County court, forcing Howell to release the names by a deadline at 6PM last Friday pursuant to a court order. Despite Mah’s apparent victory in the case, Kobach held out hope that his pending federal lawsuit might prevent her from contacting voters or further distributing their names. When Shawnee County released its certified election results yesterday evening, the final count revealed Mah lost the election by 21 votes.