After a ‘free and fair’ election in Kansas, lawmakers propose some changes to voting laws

TOPEKA — Two months out from a record-breaking general election, Secretary of State Scott Schwab expressed confidence Kansas had a free and fair election due to strong policies already in place.

Schwab credited state lawmakers with enacting legislation allowing so many methods to easily cast a ballot — advance by-mail, early in-person or on Election Day — without which he said the election season would not have been as smooth. 

Except for minor confusion caused by an increase in third parties mailing advance ballot applications, the 2020 general election was free of issues, Schwab said in a briefing to lawmakers on the House committee overseeing elections. 

“I don’t know how Kansas could do it better,” he said. “We have a lot of my colleagues across the country looking at the way we do things and how they can implement it, so they don’t have the frustrations that some states have.”

Schwab tipped his hat to poll workers for streamlining an election with record turnout despite the hectic nature of the pandemic. Several lawmakers expressed similar confidence in the Kansas election while cautioning against changing an already strong system.

In November, 1,373,125 Kansans, or 70.9% of Kansas voters, cast ballots compared to 1,225,667, or 67.4%, in the 2016 general election.

More than 830,000 Kansans exercised their voting rights during the advance voting period, while an additional 544,042 chose to vote on Election Day. 

Brian Caskey, the state election director, walked legislators through the process by which they certified results and accounted for every vote. Following a random selection of precincts, a postelection audit returned nothing of concern.

“We ordered each county to manually count by hand the election results and compare those with the machine tally,” Caskey said. “I’m happy to report that in all 105 counties every ballot was accounted for.”

Rep. Tatum Lee-Hahn, a Ness City Republican, questioned the reliability of Dominion voting machines. Dominion software has been the subject of baseless claims of fraud from Republican legislators across the country.

Twelve Kansas counties use these machines, Schwab said. 

Rep. Vic Miller, a Topeka Democrat, joked about her implications.

“As to the 12 counties that used Dominion software, I assume those are all counties Joe Biden won?” Miller said.

“Actually, no,” said Schwab.

“So, they screwed up somehow?” Miller joked.

Miller moved on to thanking Schwab for putting together a reliable election despite the circumstances.

“Nowhere did I discover anything but absolute integrity and proficiency,” Miller said, adding he felt election policy in Kansas was strong.

Shortly after Miller spoke, newly sworn-in Rep. Pat Proctor, a Fort Leavenworth Republican, urged careful consideration before any future election policy is passed.

“I’d like to associate myself with something (Miller) said about being cautious when we are tinkering with election law,” Proctor said.

Tinkering with election law

Despite Schwab’s confidence in the current process, lawmakers from both parties have proposed new election-related legislation.

Sen Richard Hilderbrand, a Galena Republican, pre-filed a bill that would make it a crime to alter or backdate the postmark of an advance mail ballot.

Hilderbrand said his proposal was born from concerns he had heard from the public.

“You always have people with concerns about the mail-in ballot being backdated, so I got to looking, and there’s nothing that says you can’t do it in the state of Kansas,” Hildebrand. “So, I put that in there.”

Violations would result in a level 9 felony under a Kansas statute on by-mail voting.

Hilderbrand has previously said he planned to introduce legislation that would ban county officials from using electronic voting machines that do not provide a paper trail. 

Four counties still use direct-recording electronic machines, or DREs, although a law passed in 2018 restricts new purchases to models that provide a paper printout of each ballot cast.

Rep. John Carmichael, a Wichita Democrat, filed three election-centered bills, two of which seek to reverse legislation championed by former Secretary of State Kris Kobach.

The first would remove the authority of the secretary of state to prosecute election crimes. Kansas is the only state where the chief election officer wields that power.

Kobach was granted the power in 2015 after arguing county attorneys ignored election fraud. He felt this authority was key to stopping what he believed was widespread fraudulent voting by undocumented immigrants.

Schwab and Attorney General Derek Schmidt have both recommended the law be repealed.

“It turned out the majority of the people he prosecuted turned out to be elderly Republicans who made simple, foolish mistakes,” Carmichael said. “Trained professional prosecutors ought to be making charging decisions and pursuing claims of election fraud, rather than a secretary of state.”

None of the people prosecuted by Kobach’s office were undocumented immigrants.

The second measure would decrease the penalties for several voting crimes Kobach lobbied to have increased.

“All this bill does is take the law back, as far as the penalties are concerned, to what it was before Kris Kobach stuck his nose in it,” Carmichael said. “These bills are trying to reestablish the status quo, which has served our state well for decades.”

Carmichael has also proposed speeding up the implementation of a law allowing Sedgwick County residents to vote at any polling place in their county, instead of just at their assigned precinct.

As it stands, the law, passed in 2019, would not be implemented until 2023. Carmichael said this is because the current law dictates that Schwab must adopt the rules and regulations of the “vote anywhere law” before it becomes practice.

Those rules are undergoing a 60-day public comment period, and will then be subject to a public hearing before being finalized.

Schwab’s regulations include a prohibition on implementation during an election in an even-numbered year and require election officials to provide six months of advance notice of the election in which they begin to use vote centers. That leaves 2023 as the earliest possible option.

Carmichael said Schwab planned this out to delay the use of anywhere voting as long as possible. He said the secretary of state made the regulations as burdensome as he could in an attempt to prevent the implementation of the law.

The proposed bill is almost identical to the previous law with a minor amendment: the county election commissioner will now allow this method of voting, irrespective of any rules and regulations.

Carmichael isn’t confident his bills will get much traction.

“I’ve been in the Legislature for eight years. I’ve had one bill pass that had my name on it that was truly a serious bill rather than a recognition,” Carmichael said. “So realistically, do I expect these bills to become law with my name on it? Not in this Republican-dominated Legislature.”

Still, Carmichael is hopeful the spirit and language will one day be adopted by someone, possibly a Republican lawmaker, with better odds of seeing them through to law.