Secretary of State Kris Kobach's office told county election officials Thursday that they shouldn't release the names of Kansas voters who cast provisional ballots, a directive that came a day after one of Kobach's critics began pursuing such a list in hopes of averting a narrow election loss.
The memo the Republican's office said the information "is not public record" and suggested that releasing the names would violate federal law. But one county clerk, who provided a copy of the memo to The Associated Press, said the federal law has been in place for almost a decade and that he and other officials have assumed they can release the information.
Democratic Rep. Ann Mah of Topeka said Thursday that she's seeking a list of people who voted with provisional ballots, which are cast when poll workers aren't sure whether someone is eligible to vote at a particular site. Those ballots are set aside for review.
Mah, one of Kobach's most vocal critics in the Legislature, said she and other Democrats want to contact those voters to help them correct any problems so their ballots will be counted.
Unofficial election results show Mah trailing her Republican opponent, Ken Corbet, by only 27 votes out of more than 10,600 ballots cast, with provisional ballots yet to be counted. Corbet currently has 5,330 votes compared to 5,303 for Mah.
Mah won a majority in Shawnee County, which includes the bulk of her legislative district, and she hopes to pick up more votes through provisional ballots there. She has requested a list of provisional ballot voters in that county, as well as similar lists from neighboring Douglas and Osage counties.
"It's interesting that after all these years of releasing those names, they come up with a statute that says they can't," Mah said. "It's been a common practice for years, and it's never been a problem."
Mah has criticized a state law championed by the conservative Republican secretary of state that requires voters to show photo identification at the polls. Campaign finance records show that Prairie Fire, a political action committee set up by Kobach, spent $3,123 on a mailing supporting Corbet only four days before Tuesday's election.
"I'm just trying to make sure that every vote that should be counted is counted," Mah said. "It's a big hill to climb. The odds are not in my favor but I've got nothing to lose."
Kobach did not immediately return telephone messages seeking comment.
The memo from his office, with the electronic signature of his elections chief Brad Bryant, quotes a federal law that states: "Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot."
The memo added that the secretary of state's office "also has received these requests, and we are denying them."