Late on Wednesday, November 14, U.S. District Court Judge J. Thomas Marten, a Clinton appointee, ruled that nothing in federal law prohibits the release of names of voters who cast a provisional ballot. The decision is a victory for Democratic legislative nominee Ann Mah, who is trailing by 44 votes in her race, but who desired to contact the voters who had cast a provisional ballot (the provisional ballots hadn’t been counted yet), to assist them and motivate them to complete the provisional ballot process.
Most of these provisional ballots were apparently cast by voters who didn’t have the proper government photo-ID at the polls. Their votes won’t count unless they return to the county elections office after the election and show a proper ID.
Kansas Secretary of State Kris Kobach personally argued the case, which is Mah v Shawnee County Commission, 12-cv-4148. He said that if the names of provisional ballots could be known to the public, that would make it possible to deduce whom those voters voted for, especially in a small-population county. For example, he said that if Mitt Romney’s total vote increased by ten votes, after the ten provisional ballots had been counted (whereas President Obama’s total did not increase at all), then anyone could deduce that all ten provisional voters had voted for Romney. This is hypothetically true, but not very likely, and not germane to this particular instance, when there are over 100 provisional ballots.
In order to find FELONS, there may sometimes have to be a disclosure of legal votes and a loss of secrecy.
Otherwise – a redo of the election in the area involved.
It depends on how the votes are canvassed. If unofficial precinct results have been released, it will be fairly simple to determine who the extra votes were cast for.
The district is in three counties, Shawnee (63%), Osage (33%), and Douglas (5%). Topeka is the county seat of Shawnee County, and also the state capital, so the personal argument by the Secretary of State may be less remarkable than it otherwise would be.
Ann Mah had originally sued in state court, and after a favorable ruling by that court, Shawnee County released the names before the case could be appealed. The federal district court had temporarily ordered the campaigns to not contact any voters or disclose the lists, but today’s order dissolves this.
Mah only sought the names of provisional voters in Shawnee County, which she narrowly won 52.5% to 47.5%.
She lost in Osage County 55.7% to 44.3%, and news reports indicated she was not concerned or displeased that Osage County had processed its provisional ballots and certified its final results. Her opponent Ken Corbet picked up 17 votes from the 53 provisional ballots, which is a greater share than his election night results.
Mah would have to win the Shawnee County portion of the provisional ballots by 73:31 to gain a tie, so it appears that she will have to cherry pick the provisional voters.