Kansas Secretary of State Kris Kobach said Wednesday that he has no plans to recuse himself from a recount process in the race for governor because any counting of ballots would take place at the county level.
There is no law which requires Kobach to recuse himself, but he is coming under fire from legal and political experts who say that he should do so to maintain trust in the election process.
Kobach, the state’s top election official, led Gov. Jeff Colyer in the Republican primary by just 191 votes from a total of over 252,000 on Wednesday morning after each of the state’s 105 counties had posted results.
Technical difficulties in Johnson County delayed results on election night. Johnson County constitutes over 20 percent of the registered Republicans in the state and did not release their election results until about 8 a.m. the morning after the election.
Colyer has the right to request that Kobach’s office initiate a recount if he remains trailing after counties tabulate provisional ballots and mail-in ballots postmarked by the deadline and approve the overall totals as being official.
Colyer would also have to file a bond with Kobach’s office to cover the cost of a recount at a price set by Kobach. If Colyer wins following a recount request, no action would be taken on the bond.
Mark Johnson, a Kansas City attorney with experience in election law, said Kobach’s role in setting the cost is the primary reason why he should recuse himself from the process. He said Kobach should surrender this authority to a deputy.
Republican legislative leaders said Wednesday morning that a recount is almost certain and could possibly take weeks. The uncertainty facing the state drew comparisons from lawmakers and attorneys to the 2000 presidential election.
Kobach acknowledged the process could drag on for an extended period of time if a recount is requested. Colyer’s campaign would have no legal grounds to force Kobach to recuse himself.
Kobach said the concerns about his role are part of having an elected secretary of state, but that there are safeguards. He pointed to the role of county officials and the fact that members of both parties would have a role in a recount.
He said there is a misconception that the secretary of state’s office administers the election when really the elections get administered at the county level. However, the fact that the secretary of state’s office heads the overall election process could be perceived as an opportunity to shift any potential recount in Kobach’s favor. In this case, perception could serve as reality in the minds of many, whether or not there is any foul play.
Prior to any potential recount request, counties first must go through provisional ballots and mail-in ballots which were post-marked before Election Day. Most counties are expected to conduct this count, called canvassing, and report official election results to the secretary of state’s office next week. Kobach’s office estimated that there were between 8,000 to 10,000 provisional ballots across the state that need to be reviewed.
If Colyer goes onto lose by the current margin it will be the closest loss for any gubernatorial incumbent candidate in any primary ever according to Geoffrey Skelley, a political analyst at the University of Virginia Center for Politics, whose research dates back to the 1800’s.
Colyer indicated in a statement Wednesday morning that he had no intention of conceding the race which remains too close to call before any provisional ballots have been counted.
