Hearing Scheduled: Jan. 24, 2019 at 10:00AM
IN THE TENTH JUDICIAL DISTRICT OF KANSAS CIVIL COURT DEPARTMENT
DAVIS HAMMET, ) ) Plaintiff, ) ) v. ) Case No. 18CV05173__ ) Div. No. 7 RONNIE METSKER, ) Chap. 60 in his official capacity as Elections ) Commissioner in Johnson County, Kansas, ) ) ) Defendant. )
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
COMES NOW Plaintiff, by and through his undersigned counsel, and submits the following Memorandum in Support of Plaintiff’s Motion for Summary Judgment.
INTRODUCTION
The undisputed facts establish that Defendant, Johnson County Election Commissioner
Ronnie Metsker, denied Plaintiff Davis Hammet’s open records request for the names of provisional voters in the August 8, 2018 primary election.1 The lists Mr. Hammet requested meet the definition of public records under the Kansas Open Records Act, K.S.A. §45-217 et seq., and no provision of that statute exempts the names of provisional ballot voters from public inspection.
Nonetheless, Defendant denied Mr. Hammet’s request based on his incorrect interpretation of the
Unauthorized Voting Disclosure Act, K.S.A § 25-2422. In May 2013, SB 122 amended the
Unauthorized Voting Disclosure Act to remove the limitation on public access to the lists of regular
1 Hammet also requested the reasons ballots were designated as provisional ballots, which is not being challenged in this case.
and provisional ballot voters, provided that a request for these lists could only be made after the final election canvass. In May 2018, however, SB 336 further amended the Unauthorized Voting
Disclosure Act to allow lists of provisional voters to be disclosed even before the final canvass
(i.e. at any point after an election). House Judiciary Committee Members, the Assistant Revisor of Statutes, and the Kansas Legislative Research Department all described the effect of this amendment as eliminating the part of the Unauthorized Voting Disclosure Act that prohibited public access to the names of voters who voted regular and provisional ballots between the election and the canvass, and discussed the change as a means of ensuring election integrity before results are finalized.
Defendant’s interpretation of the Unauthorized Voting Disclosure Act as amended—that it prohibits election officials from ever disclosing the name of any voter—contravenes ordinary principles of syntax and ignores the express intent of the legislature. Because the Unauthorized
Voting Disclosure Act does not prohibit disclosure of provisional ballot voter lists, Defendant lacks a proper basis for withholding the requested information. Defendant’s refusal to provide Mr.
Hammet access therefore violated KORA. The violation entitles Plaintiff to relief as a matter of law and summary judgment in favor of Mr. Hammet is thus warranted.
STATEMENT OF UNCONTROVERTED CONTENTIONS OF FACT
1. In May 2018, the Kansas legislature passed SB 336, an omnibus government transparency
bill on the recommendation of the House Judiciary Committee. Governor Jeff Colyer
signed the bill into law on May 10, 2018.
2. The bill, which went into effect on July 1, 2018, removed a subsection in the Unauthorized
Vote Disclosure Act, K.S.A. § 25-2422 that had previously provided “the name of any
voter who has cast a ballot shall not be disclosed from the time the ballot is cast until the
final canvass of the election by the county board of canvassers.”
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3. The mid-term primary election took place on August 7, 2018. A record 118,708 Johnson
County voters participated in the election, 2,349 of whom were directed to cast a
provisional ballot. 898 provisional ballots were not counted, including 153 advance ballots
that were rejected because the signature on the envelope did not match the voter’s record.
4. On August 22, 2018, Davis Hammet requested access to the list of names of voters who
cast provisional ballots as well as the reason each voter was directed to vote provisionally.
Several hours later, Defendant, through counsel, emailed Mr. Hammet to inform him that
his request was denied citing the Unauthorized Voting Disclosure Act.
5. On August 27, 2018, Mr. Hammet requested the names of advance voters who had their
ballots rejected and the reasons why their ballots were rejected. Within several hours of
receiving Mr. Hammet’s request, Defendant declined to release the documents, explaining
that the advance mail voters became provisional voters once their ballots were rejected
again citing the Unauthorized Voting Disclosure Act.
PROCEDURAL HISTORY
On September 17, 2018 Plaintiff filed suit in this Court against Ronnie Metsker, challenging Defendant’s refusal to permit him to copy or inspect the names of provisional ballot voters. Defendant filed his response on October 3, 2018, reiterating his position that the
Unauthorized Voting Disclosure Act prohibited him from disclosing the names of a voter who cast a provisional or regular ballot during the August 8, 2018 election.
LEGAL STANDARD “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that no material fact is substantially contested and that the moving party is entitled to judgment as a matter of law. When there are no genuine material factual disputes, the issue becomes one of law.” See, e.g., State of Kansas v.
3
Great Plains of Kiowa Co. Inc., 425 P.3d 290, 293 (Kan. 2018) (citing Fawcett v. Oil Producers,
Inc. of Kan., 302 Kan. 350, 339 (Kan. 2015)).
ARGUMENT
I. PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW.
With no material facts in dispute, the issues before this court are ones of statutory interpretation and thus involve only questions of law. Frick v. City of Salina, 289 Kan. 1, 8 (Kan. 2009) (statutory interpretation presents a question of law). In particular, whether: (1) the names of voters are accessible under the Kansas Open Records Act (KORA); and (2) the Unauthorized Voting
Disclosure Act prohibits disclosure of the names of provisional ballot voters, thereby making them unavailable for disclosure under KORA. See State Dept. of SRS v. Public Employee Relations Bd.,
249 Kan. 163, 166, 815 P.2d 66 (1991) (“the interpretation of KORA is a question of law”). The plain language and legislative history of KORA and the Unauthorized Voting Disclosure Act clearly provide public access to the names of provisional ballot voters. As discussed below,
Plaintiffs are thus entitled to summary judgement.
A. Provisional Ballot Voter Lists Are Public Records under the Kansas Open Records Act.
Any person is entitled to inspect public records in Kansas unless KORA expressly exempts the information from disclosure. KORA provides an expansive definition of “public records” including any recorded information “which is made, maintained, or kept by” a public agency.
K.S.A. §45-217(f)(1). Moreover, it is well-established that KORA “shall be liberally construed and applied to promote” public access to government records. K.S.A. §45-216(a).
Johnson County is required by state and federal statute to maintain voter records regarding election participation and the type of ballot a voter cast. See K.S.A. § 25-2319 (“at every election,
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one of the judges of the election board shall, as each person votes, enter on the registration book the word ‘voted,’ or some other distinguishing mark prescribed by the county election officer, on the line where such person’s name appears”); K.S.A. § 25-2409(b) (“The judges shall write on the envelope the word “provisional” and a statement of the reason for the challenge”);2 52 U.S.C. §
21082(a)(5)(B) (“The appropriate State or local election official shall establish a free access system…that any individual who casts a provisional ballot may access to discover whether the vote of that individual was counted, and, if the vote was not counted, the reason that the vote was not counted”). Voter information, including voter names, is therefore a public record under KORA.
Kan. Att’y Gen. Op. No. 88-52, 1988 Kan. AG LEXIS 132 (Oct. 27, 1988). Moreover, the
Attorney General has advised that voter lists and other information stored in the Electronic Voter
Information System (ELVIS) are presumptively open to the public. See Kan. Att’y Gen. Op. No.
17-10, 2017 Kan. AG LEXIS 10 (July 11, 2017) (“the information contained in the database is a public record possessed by a public agency within the meaning of the Kansas Open Records Act
(KORA)”). Thus, the names of Johnson County voters who cast a provisional ballot during the
August primary would clearly constitute a public record under KORA.
Nor do any of KORA’s fifty-five express exceptions close the names of voters from public inspection. K.S.A. § 45-221(a)(2)-(55). The only KORA exception that could potentially apply to the names of provisional ballot voters is the catchall provision prohibiting disclosure of records that are “specifically prohibited or restricted by federal law, state statute or rule of the Kansas
Supreme Court.” K.S.A. § 45-221(a)(1). As discussed below, federal and state statutes provide that voter names are open for public inspection, not closed.
2 As an example, see the provisional ballot envelopes Smith County disclosed earlier this year, which include both the name of the provisional voter and the name of the election judge, among other information. Ex. 2, at 6-12. 5
B. Provisional Ballot Voter Lists Are Open under Public Inspection Provisions of the Kansas Election Code and the National Voter Registration Act.
In addition to KORA, the Kansas Election Code and National Voter Registration Act explicitly provide that voter lists are open to the public. Kansas election law mandates that “the county election officer shall allow access to any person at any time during regular business hours, under supervision of the county election officer for the purpose of examining the voter registration books, active voter lists, and other lists of voters required to be kept.” K.S.A. § 25-2320(a). The statute explicitly enumerates the information on voter records that should be redacted prior to disclosure, requiring removal of “the individual’s social security number, driver’s license number,
[or] nondriver’s identification card number or any part thereof.” K.S.A. § 25-2320(b).
As discussed in the preceding section, among the voter lists that must be kept under state and federal law are lists recording which registered voters participated in an election and which voters cast a provisional ballot. See K.S.A. § 25-2319; K.S.A. § 25-2409(b) (“the word
‘provisional’ shall be written following the voter’s name in the poll book.”); 52 U.S.C. §
21082(a)(5)(B) (in effect requiring state government to keep track of all provisional ballot voters for follow-up purposes). Kansas law and the National Voter Registration Act also require maintenance and public disclosure of active and inactive voter lists which necessarily convey information about whether a voter participated in a given election. See K.S.A. § 25-2304; 52
U.S.C.S. § 20507(i).
Kansas’ election public disclosure provision specifically directs Defendant to make all of these lists available for public inspection, including the list of provisional ballot voters, because they are “lists of voters required to be kept” by local officials. K.S.A. § 25-2320(a). While
Defendant is required to redact a limited set of personally identifying information included in public voter records under the election disclosure provision, the type of ballot a voter cast or whether they participated in a given election is not included in the set of information that is to
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remain confidential. See K.S.A. § 25-2320(b). Therefore, the list of names of voters who participated in an election must be disclosed under this provision of state law and under the
National Voter Registration in addition to KORA. See K.S.A. § 25-2320(a); 52 U.S.C.S. §
20507(i).3 The absence of an exception to disclosure under the Kansas Election Code is notable since the legislature explicitly incorporated information restrictions from other sections of the election code, in particular K.S.A. § 25-2309(j). Legislative silence as to whether the type of ballot cast by a voter should be redacted clearly indicates the names of provisional ballot voters are subject to public disclosure.
C. The Unauthorized Voting Disclosure Act Does Not Create an Exception to KORA. Defendant continues to justify his decision to close the names of provisional and regular ballot voters from the public due to language in the Unauthorized Voting Disclosure Act that
Defendant believes restricts disclosure of information on the manner in which a ballot was cast.
See K.S.A. § 25-2422(a)(1). Defendant’s interpretation of this provision is contrary to the principles of syntax and the rules of statutory construction. Further, even if the court determines the plain language of the provision is amenable to multiple readings, Defendant’s interpretation directly contradicts the legislature’s express intent when amending the statute in 2013 and 2018.
3 Provisional ballot voter lists are open to inspection under the National Voter Registration Act’s public disclosure provision. Section 8(i) of the NVRA provides “public access to a broad scope of information that shows how a state makes voter eligibility determinations” and includes records that “show the results of the [registration and list maintenance] process and activities put into place.” Project Vote v. Kemp, 208 F. Supp. 3d 1320, 1336-40 (N.D. Ga. 2016). Provisional ballot voting is inextricably linked to registration and list maintenance in Kansas. In order to cast a provisional ballot, a voter must first complete a registration form. K.S.A. § 25-409(b); K.A.R. § 7-46-2(D). Therefore, county election officials would be required under the NVRA to disclose the names of all voters who registered as a condition of casting a provisional ballot. See Project Vote/Vote for Am. Inc. v. Long, 682 F.3d 331, 336 (4th Cir. 2012)(the NVRA mandates disclosure of registration applications). A list of names of purged voters who cast a provisional ballot after being removed from the rolls would similarly be open to inspection under the NVRA. See Eg. Truth the Vote v. Hosemann, 43 F. Supp. 3d 693, 723 (S.D. Miss. 2014) (purged voter information open under the public disclosure provision). In sum, the legislature would not criminalize disclosures that are mandated under federal law. 7
1. The Plain Language of K.S.A. § 25-2422 Does Not Prohibit Disclosure of the Provisional Ballot Voter Lists.
To determine the intent of the legislature when interpreting an arguably ambiguous statute,
Kansas courts look to plain language of the statutory text. See, e.g., Northern Natural Gas Co. v.
ONEOK Field Services Co., 296 Kan. 906, 918 (2013), quoting Stewart Title of the Midwest v.
Reece & Nichols Realtors, 294 Kan. 553, 564–65 (2012) (“the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. We first attempt to ascertain legislative intent by reading the plain language of the statutes and giving common words their ordinary meanings.”). Kansas courts also employ the generally accepted rules of grammar and syntax when interpreting a statute. See, e.g., State v. Toliver, 306 Kan. 146,
153 (Kan. 2017) (holding the court will apply the natural construction of language unless the legislature provided a contextual indication to the contrary).
Adopting Defendant’s interpretation of K.S.A. § 25-2422(a)(1) would require the court to abandon the plain language cannon of statutory construction as well as the most basic principles of grammar. For subsection (a)(1) to prohibit disclosure of provisional or regular voters’ names, the clause “whether cast in a regular or provisional manner” must be construed as an independent prohibition in a series of restricted categories of voter information. This construction would be inconsistent with the plain language reading of the statute. First, the rules of English require parallel structure in a list, and—in the case of (a)(1), a direct object in each discrete item. The relevant clause “whether cast in a regular or provisional manner” has no direct object and is drafted in a manner that is inconsistent with the other two clauses in the proposed series. To reach the parallel structure needed to comport with English language principles and reach the interpretation urged by Defendant, the statute would need to be written as, “unauthorized voting disclosure is
[…]Disclosing or exposing the contents of any ballot, whether the ballot was cast in a regular or provisional manner, or the name of any voter who casts such a ballot.” This sentence structure
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would assert three separate bases for a finding of unauthorized vote disclosure. However, this is not how the statute is drafted.
Conversely, if the court were to construe “whether cast in a regular or provisional manner” consistent with common grammar and syntax principles, it would treat the phrase as a subordinate clause that modifies the prohibition on exposing the contents of any ballot. Under the plain English reading of the statute, K.S.A. § 25-2422(a)(1) does not prevent the disclosure of whether a ballot was cast provisionally. Instead, it would prevent only the disclosure of the specific contents of a ballot (i.e. for whom a voter cast their vote) and the disclosure of the name of any voter in conjunction with the contents of their ballot, regardless of whether the ballot was provisional or not. Thus, the clause “whether cast in a regular or provisional manner” merely modifies the antecedent clause and clarifies that the contents of both regular and provisional ballots must be kept confidential.
A number of county election officials have apparently correctly read the statute as well. In
August 2018, Barton, Dickinson, and Douglas all shared their lists of provisional ballot voters in response to open records requests. See Ex. 1. Similarly, Kiowa, Smith, Phillips, and Thomas counties have taken the position that the type of ballot cast by voters is open to the public and have shared those lists. See Ex. 2. This interpretation is not only consistent with the plain language of the statute, it comports with the legislature’s clearly expressed intent as described in detail below.
Meanwhile if Defendant’s interpretation is credited, county clerks in at least seven counties have committed a level 10 nonperson felony subjecting them to the possibility of probation or even imprisonment. See K.S.A. §25-2422(d); see also 2018 Sentencing Ranges, KANSAS SENTENCING
COMMISSION (2018), available at https://sentencing.ks.gov/docs/default-source/2018-forms/2018- nondrug-and-drug-grid-quick-reference-guide.pdf?sfvrsn=6ed4fd3f_0.
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2. Legislative Intent Clearly Demonstrates K.S.A. §25-2422 Does Not Create an Exception to the Kansas Open Records Act or Limit Access to the Names of Provisional Ballot Voters.
The most Defendant can argue is that the text of K.S.A. § 25-2422(a)(1) is ambiguous.4
Therefore, the court should look to “the historical background of the enactment, the circumstances attending its passage, and the effect the statute may have under the various constructions suggested.” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000); In re Adoption of G.L.V., 190 P.3d 245, 259 (2008).
K.S.A. § 25-2422 has been amended twice in recent years. First, in 2013 by SB 122 and later in 2018 by SB 336. The history of these enactments captures a series of changes meant to allow public access to the names of voters who cast a provisional ballot at any time following an election.
Following an unsuccessful attempt to block the pre-canvass release of names of provisional ballot voters during the 2012 election,5 Kansas Secretary of State Kris Kobach urged the
Legislature to amend the nondisclosure law to limit access to voter names. Kobach testified at a hearing on SB122 (initially titled SB177) that lists of provisional ballot voters should not be
4If the court finds the plain English reading of K.S.A. §25-2422(a)(1) fails to unambiguously establish that the statute does not prohibit disclosure of provisional ballot voter names, Defendant’s proposed construction is even less clear on the face of the text. As detailed in sections (I)(A) and (I)(B) of this brief, Defendant’s construction creates conflicts with other provisions of law— particularly §K.S.A. 25-2320— contradicts the interpretations of other state officials, and is notably not reflected in other sections of the Election Code. See, e.g., State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012) (ambiguity can arise because 'various statutes are in conflict); Mcullough v. Wilson, 426 P.3d 494, 499 (Kan. 2018) (“the absence of language in a statute can create an ambiguity”). All of this in addition to directly conflicting with the common standards the legislature is presumed to use. 5Ann Mah, the 2012 Democratic candidate for the 54th District of the House of Representatives, filed an open records request with the Shawnee County Election Commissioner to obtain the names of provisional ballot voters in her District four days before the county canvass. The commissioner denied her request and she successfully petitioned the court for their release. The Kansas Secretary of State’s office filed an action in federal court to enjoin the release, which was unsuccessful. See Hearing on SB 177 Before the S. Comm. on Ethics, Elections and Local Gov’t, 85th Leg., 2013 Sess. (Kan. 2013) (statement of Ann Mah), available at http://www.kslegislature.org/li_2014/b2013_14/committees/misc/ctte_s_ethics_electns_1_20130226_ 06_other.pdf. 10
publicly accessible until after an election canvass to ensure an “orderly process for preparing for the county canvass and to protect voters from an unnecessary extension of the campaign season.”
See Hearing on SB 177 Before the S. Comm. on Ethics, Elections and Local Gov’t, 85th Leg.,
2013 Sess. (Kan. 2013) (statement of Kris Kobach, Sec. of State), available at http://www.kslegislature.org/li_2014/b2013_14/committees/misc/ctte_s_ethics_electns_1_20130
220_01_other.pdf. Secretary Kobach suggested this was because “providing provisional voters’ names to candidates effectively extends the campaign period for six to ten days after the election.”
Id. As such, SB122 amended K.S.A. § 25-2422(b) to state “The name of any voter who has cast a ballot shall not be disclosed from the time the ballot is cast until the final canvass of the election by the county board of canvassers.” 2013 Kan. Sess. Laws 504, L. 2013, ch. 101, § 1.
But this is not the only change SB122 made. Prior to 2013, K.S.A. § 25-2422 stated that
“Disclosing or exposing the contents of any ballot or the manner in which the ballot has been voted” (emphasis added), see K.S.A. § 25-2422 (2012), was an unauthorized voting disclosure.
This language prevented public disclosure as to whether a voter cast a provisional or regular ballot.
Indeed, this is the precise language Secretary Kobach relied upon in 2012 when he instructed county clerks not to release lists of provisional ballot voters to the public under KORA. Ex. 3,
Secretary of State Memorandum, Nov. 8, 2012, at 1-2. This same language remained unchanged in the original bill that was introduced. See Kan. SB 177 (as introduced Feb. 12, 2013), available at http://www.kslegislature.org/li_2014/b2013_14/measures/documents/sb177_00_0000.pdf.
However, following a hearing on February 20, 2013, the Senate Committee on Ethics,
Elections, and Local Government amended the bill to exclude this language altogether. See Kan.
S. Comm. on Ethics, Elections and Local Gov’t, SB 177 (draft of Feb. 27, 2013), available at http://www.kslegislature.org/li_2014/b2013_14/measures/documents/sb177_01_0000.pdf.
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The altered provision, current in K.S.A. § 25-2422(a)(1), reads that “Disclosing or exposing the contents of any ballot, whether cast in a regular or provisional manner, or the name of any voter who cast such ballot except as ordered by a court in an election contest” is an unauthorized voting disclosure. It would therefore seem that the Senate Committee intended to remove the prohibition on disclosing the manner in which a person voted (provisionally or by a regular ballot).
But we need not guess at the legislature’s intent. According to the Kansas Legislative
Research Department’s Summary of SB122,6 the Senate Committee’s amendment “modifie[d] this condition to specify the ballot could be a regular or provisional ballot and eliminate[d] from the condition disclosure of the manner in which the ballot has been voted.” 2013 Summary of
Legislation at 34, KAN. LEG. RESEARCH DEP’T (2013), available at http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/2013_summary_ of_legislation.pdf.
In other words, the Legislative Research Department statement of the legislature’s intended changes is fully consistent with the plain language reading of the amended text as described by Plaintiff in the prior section. The phrase “whether cast in a regular or provisional manner” is a modifying phrase clarifying that the contents of both provisional and regular ballots
(i.e. who was voted for on the ballot) will not be disclosed. Meanwhile, the specific prohibition on revealing the names of those who voted a provisional ballot as opposed to a regular ballot—the manner of voting— was intentionally deleted.
6 Although the Kansas Supreme Court has cautioned the use of supplemental notes produced by the Legislative Research Department as legislative history because they clearly state that they do not express legislative intent, McCracken v. Kohl, 286 Kan. 1114, 1122 (Kan. 2008), Legislative Research Department bill summaries do not bear the same warning statement, and Kansas appellate courts have regularly examined bill summaries as legislative history even after the Kansas Supreme Court’s decision in McCracken. See, e.g., State v. Umphenour, Case No. 116,577, 2018 Kan. App. Unpub. LEXIS 383, at *24 (Kan. App. May 18, 2018); State v. Dawson, Case No. 113,233, 2016 Kan. App. Unpub. LEXIS 354, at *9 (Kan. App. May 13, 2016); T.N.Y. v. E.Y., 51 Kan. App. 2d 956, 967 (Kan. App. 2015); Roberts v. Midwest Mineral, Inc., 41 Kan. App. 2d 603, 608 (Kan. App. 2009). 12
Moreover, the only court to consider the statutory change to K.S.A. § 25-2422(a)(1) after
SB122 agreed with this interpretation. See Mah v. Bd. Of County Comm’rs, 2013 U.S. Dist. LEXIS
107804 at 9 (D. Kan. 2013) (“the newly amended Kan. Stat. Ann. § 25-2422(b) prevents the names of provisional voters from being disclosed until the final canvass of the county board of canvassers”) (emphasis added). Nor is the change inconsistent with the purposes of SB122 as articulated by Secretary Kobach, the goal being to prevent disclosure of provisional ballot lists prior to the final canvass in an election. See Hearing on SB 177 Before the S. Comm. on Ethics,
Elections and Local Gov’t, 85th Leg., 2013 Sess. (Kan. 2013) (statement of Kris Kobach, Sec. of
State).7
Finally, if the 2013 legislature intended K.S.A. § 25-2422(a)(1) to prohibit disclosure of the names of voters categorically, it would not have added what was then subsection (b) to prohibit disclosure between the election and the canvass. The “election to canvass” restriction on the release of names of regular and provisional voters would be superfluous if the language in (a)(1) indeed created a permanent restriction on the release of voter names as Defendant claims. See State v. Fisher, 304 Kan. 242, 268, 373 P.3d 781 (2016) (“we do not interpret statutes in such a manner as to render portions superfluous or meaningless.'" (citing State v. Van Hoet, 277 Kan. 815, 826-
27, 89 P.3d 606 [2004])).
In 2018, the 89th Kansas Legislature further amended K.S.A. § 25-2422 through SB 336.
The only change made under SB 336 was the removal of the temporal restriction that had been added for the first time in SB122, by deletion of the following language from K.S.A. § 25-2422(b):
“The name of any voter who has cast a ballot shall not be disclosed from the time the ballot is cast until the final canvass of the election by the county board of canvassers.” 2018 Kan. Sess. Laws
7 In fact, in Ann Mah’s testimony speaking against SB 122, she took as a given that the prohibition on the disclosure of provisional ballot lists would only apply before the canvass. See supra note 3. This was the entire nature of the discussion surrounding SB 122. 13
732, L. 2018, ch. 87, § 2. In doing so, the legislature made all voter lists, both lists of provisional and regular ballot voters, available to the public even before the final canvass for an election.
The legislative history of SB 336 tells us that this is precisely the outcome intended.8 The
House Judiciary Committee introduced the amendment to K.S.A. § 25-2422 during a hearing held on SB 336 on March 20, 2018. Towards the end of the hearing, the Judiciary Committee voted to add the contents of SB 295, a bill titled “Legislative Review of Exceptions to Disclosure of Public
Records,” to SB 336. When Committee Chairman Blaine Finch called for amendments to the contents of SB 295, Representative Vic Miller from Topeka introduced an amendment that would
“remove the closure enacted” to restrict public access to records relative to voting.9 See Ex. 4,
Hearing on SB 336 Before the H. Comm. on Judiciary, 87th Leg., 2018 Sess. (Kan. 2018), at
1:52:52. Specifically, Miller explained the difficulties the restriction on public access to voter lists between the election and canvass causes to candidates in close elections. In response to
Representative Miller’s proposal, Committee Chairman Blaine Finch stated “if I understand this correctly based on the strike in the balloon, current law would be that the name of the voter who cast a ballot should not be disclosed and by striking that, it can be disclosed? At any time between the vote and the canvass?” Id. at 1:55:06-1:55:23. Representative Miller responded “when you’re contesting an election and you have information that someone was a convicted felon and may have voted in an election, it is kind of nice to know whether they had impact on the election and actually voted. And you have a very short time frame to discover those things and prove them up and if
8 It is worth noting that SB 336 is an omnibus sunshine bill that was principally drafted to remove public access restrictions to information maintained by DCF and police departments regarding child deaths and body cam footage, respectively. See Laura Bauer and Hunter Woodall, Kansas Passes Bill to Open State Secrets on Child Deaths, Police Shootings, KANSAS CITY STAR, May 1, 2018 (https://www.kansascity.com/news/politics-government/article209883924.html). 9 Kansas courts have long recognized that statements made during committee meetings reveal legislative intent. Manhattan v. Eriksen, 204 Kan. 150 (1969); State v. Quested, 302 Kan. 262, 282, 352 P.3d 553, 565 (Kan. 2013)(citing the house and senate judiciary committee minutes as evidence of the legislature’s clear intent to curtail judicial discretion in sentencing when passing the sentencing guidelines). 14
you don’t even have access to the names of the people who voted, which aren’t going to already be public, that makes it very difficult to do in honest contest.” Id. at 1:55:23-1:55:66.
Ranking minority member Representative John Carmichael voiced his support for the amendment, providing a recitation of the legislative history of SB 122 and explaining that “it’s not a secret who votes in elections in America and it shouldn’t be a secret who votes, the secret is how did you vote?” Id. at 1:58:07. Representative Carmichael concluded his remarks by summarizing the proposed amendment for the committee as “this reopens so that all of us know who participated in the election. That is what it’s about.” Id. at 1:58:16. With the exception of Scott, only
Representatives Miller, Finch, and Carmichael offered a statement about the amendment during the hearing. Two days after the hearing, the committee recommended that the bill, including its amendments to K.S.A. § 25-2422, be passed and the House voted to pass the bill on March 29,
2018. While SB 336 underwent minor changes in conference committee following its passage in the House, no amendments were made to the proposed change to K.S.A. § 25-2422, which the conference committee reported as an amendment to the KORA Exceptions, noting “the language was modified to remove, rather than continue, an exception regarding certain voter information.”
H. Conf. Comm. Rep. Brief on H. Sub. for SB 336 (Kan. 2018), available at http://www.kslegislature.org/li/b2017_18/measures/documents/ccrb_sb336_01_0000.pdf.
After the bill was passed the Kansas Legislative Research Department Summary of
Legislation described SB 336’s amendment to K.S.A. 25-2422(a)(1) as follows “the bill removes an exception preventing the disclosure of the name of any voter who has cast a ballot from the time the ballot is cast until the final canvass of the election by the county board of canvassers.”
2018 Summary of Legislation at 147, KAN. LEG. RESEARCH DEP’T (2018), available at http://www.kslegresearch.org/KLRDweb/Publications/SummaryofLegislation/2018_summary_o
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f_legislation.pdf. The amendment is under the heading titled “Continuation and Elimination of
KORA Exceptions.” Id.
The three legislators who discussed SB 336’s amendment to K.S.A. 25-2422 clearly understood the bill to remove the temporal restriction on public access to the names of voters and eliminating that exception to the Kansas Open Records Act. Furthermore, these legislators discussed that voter lists could be used to fairly contest an election before the canvass, thereby implying their understanding that lists of both provisional voters and regular ballot voters would be available under the law. Moreover, the Kansas Office of Revisor staff explained to the committee members that the amendment would remove a KORA exception and make the information open to the public. An explanation of the amendment that was later included in the annual legislative summary also explained the amendment as eliminating a KORA exception.
Finally, if the statements of multiple legislators and the Legislative Research Department were not sufficient evidence of legislative intent, the amendment in SB 336 was passed as part of a larger government transparency bill.
CONCLUSION For the foregoing reasons, Plaintiff respectfully requests the Court to declare Defendant’s refusal to provide public access to voter list violates the Kansas Open Records Act and order
Defendant to provide Mr. Hammet with the public records he has requested.
Dated: December 11, 2018 Respectfully submitted,
/s/ Lauren Bonds LAUREN BONDS, 27807 ZAL SHFOFF, 28013 ACLU Foundation of Kansas 6701 W 64th Street, Suite 210 Overland Park, KS 66202 Tel: (913) 490-4114 Fax: (913) 490-4119
16
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the 11th day of December, 2018, a copy of the above and foregoing document was hand delivered to the chambers of the Honorable David W. Hauber, and was served concurrently by electronic mail delivery on the following parties:
Cynthia C. Dunham Johnson County Legal Department 111 S. Cherry Street, Ste 3200 Olathe, Kansas 66061 [email protected] Attorney for Defendant
Respectfully submitted,
/s/ Lauren Bonds LAUREN BONDS, 27807 ZAL SHFOFF, 28013 ACLU Foundation of Kansas 6701 W 64th Street, Suite 210 Overland Park, KS 66202 Tel: (913) 490-4114 Fax: (913) 490-4119
ATTORNEYS FOR PLAINTIFF
17 Exhibit 1, Page 1 of 17
From: Darin DeWiS
Please see aSachment for your requested informaYon.
We had 28 total Provisionals.
Thanks, Darin DeWi)
Voter RegistraHon Clerk Barton County Clerk’s Office 1400 Main, Rm 202 Great Bend, KS 67530 620.793.1835 (office) 620.793.1990 (fax) [email protected] Exhibit 1, Page 2 of 17
Ricky Becker
Tammey Ney
Frankie Miguel
Joshua Patton
Christopher Scheideman
Mandi Martin
Benjamin Henning
Scott Andersen
Audra Rorick
Bryan Ammeter
Helen Schippert
LeeAnn Spence
Jennifer Edwards
Bernice Deines
Kara Potter
Ruth Potter
Jeffrey Potter
Lois Starbuck
L Keil
Thomas VanderMeer
Charlie Scott
Jennifer Hamby
Tresa Finch
Barry Jack
Brian Buckbee
Ronald Hickel Exhibit 1, Page 3 of 17
From: Barb Jones
Lauren Here are the names of people that did provisional ballots in Dickinson County in the August 7, 2018 Primary ElecVon. Barbara Jones
Barbara M. Jones PO Box 248 Abilene, KS. 67410 (Phone) 785-263-3774 (Fax) 785-263-2045 Exhibit 1, Page DICKINSON4 of 17 COUNTY PROVISIONAL NAMES PRIMARY 2018 FIRST LAST Chalsea Millner Sarah Haybarker Gregory Pierce Jeremy Vinduska Laura Baldwin Theresa Travelute Jeremiah Schmitz Michael Dobbs Bonita Hartzell Christopher Davies Travis Sawyer Julia Anderson Jon Thayer Julianne Connet Dustin DeWeese Charles Cooper Katherine Benton Teri Dohrman Bobbie Schwarz John Donnelly Neal Barten Steve Whitehair Nathen Zook Sherrie Bathurst Troy Boyd Steven Dugan Shauna Hall Ricky Bulman Joseph Russo Delinda Lamb Kari Thornton Janice Crowder Claudia Lawrence Calista Preston Brandon Green Terrain Kinderknecht Lloyd Lamb James Crowder Lori Wischer Mary Maldonado Jenna Norton Susan Schenck Andra Cunningham Michael Cunningham Robert Keener Vicki Cooper Exhibit 1, Page DICKINSON5 of 17 COUNTY PROVISIONAL NAMES PRIMARY 2018 Phillip Moore Zarra Barlow Eadye Bollinger Jesse Hagerman Timothy Rowe Richard Olson Caleb Staatz Robert Elfman Andrew Laughlin Darrel Rusch Susan Rusch George Fleming David Crosby William Griggs Patricia Crosby Steve Johnson Terra Daisy Daniel Roome Amanda Miranda Laura Zeigler-Rikoric Angela Martise Donalyn Biehler Velda McDiffett Albin Harris Amy Coppola Rose Elliot Marcie Leidig Maureen Harrison Exhibit 1, Page 6 of 17
From: [email protected]
Lauren –
AYached is the list of names from the Provisionals. We are currently s[ll working thru them, so addi[onal informa[on will come later.
Thanks Heather Dill Deputy County Clerk, Elections 1100 Massachusetts Lawrence, KS 66044 785-832-5267 www.douglascountyelections.com
From: CL - Shew, Jamie Sent: Thursday, August 09, 2018 8:50 AM To: CL - Dill, Heather
From: Lauren Bonds
Dear Mr. Shew,
I hope you are well. Please find aYached a public records request for the list of provisional ballot voters from the primary elec[on. Please do not hesitate to call me if you have any ques[ons or need addi[onal informa[on to process this request. Exhibit 1, Page 7 of 17
Theresa Marie Abel Timothy Blake Adamson Stephen Emerson Albright Larry David Alcorn Catherine Sue Alcorn Becky Sue Aldinger Gwentessa Laurel Alfie Isaac Allred Kelly Anderson Taylor Pitsada Ardong Wilson Lewis Arnett Deronda Ashley Michael Anthony Austin Frances Marie Avery Jordan Avery Robert A Babcock Danny Lee Bailey Micah Bailey Gregory Daniel Baird Saif Muhammad Bajwa Douglas Baker Brad Barker Robert Eugene Barnes Dylan Michael Barnett Wayne D Barrick Logan Jane Barriger Audrey Ellen Barron Ben Hainer Barteldes Cheyenne Christine Bartz Taylor Andrew Bauer Valentine Renee Baumann Lisa C Baxter Daniel R Baxter Rachel Beach Raymond D Beall Max T Bearce Shannon Beat Erin Amanda Beckerman Chester James Beerbower Julie Renee Bell Vicky Russell Bergman Alec Bernstein Joe Bickford Jon Edward Bierig Jacob Bigus Andrew Francis Bireta Irma Ester Blair Leah Rose Bobek Exhibit 1, Page 8 of 17
Lauralyn K Bodle Austin Bogina Shannon Lee Bond Kirsten Ann Meenen Bosnak John B Boulton Brenda Diane Bowman Gary M Bowman Kristina Kay Bradfield Ethan Paul Tramp Bradford Carol A Bradley Doreen D Brady Keith Bradly Braman Jennie A Brouhard Steve Eugene Brown O D Brubaker Farrah Brumm Satira M Bruns Christopher Allen Bryant Chesney Ashaqua Buck Timothy Michael Buckland Alyssa Buckland Stephen R Buren Stanley Earl Burleson II Jill Marie Bussinger Chaney Pate Butner Christopher Brian Cabanas Matthew Barton Carey Stephanie Ann Cargill Michele A Carlson Thomas E Carlson Kady Leigh Carson Darren V Carter Truman A Carter Andrew M Carttar Bridget Danielle Cary Joachim Case Betty Jean Chapin Tehreem Hameed Chaudhry Rosita Chavez Jeffry Spencer Clarer Andrea Clark Christine Clarke Kathleen Jo Clifford Kenneth J Clifford Sleyler Colladay Gerald L Collie Bobby Gene Collins Melissa Ann Combs Exhibit 1, Page 9 of 17
Zachary J Comstock Kimberly Condon Barbara S Cook Wes R Cook Beverly Corkill Evan Andrew Cornell Pamela J Cornish Ruth N Cornwall Andrew W Cote Richard L Crank Donna Crawford Gary Lee Crowe Barbara Culver Kristen Joanne Cypret Marisa Morgan Dallman Michael W. Dann Thomas E Darnell Doris L Darnell Lisa Maria Day Fernando R de San Miguel Ava Elaine de San Miguel Nathan A Del Real Angelito Delos Santos Dela Cruz William Edward Dempsey Jeanette Rene Denton Amanda Denton Brandon K Devlin Heather Dirk Terri L Dixon Sridevi Donepudi Anita Marie Dougherty Paula Kay Dupigny-Leigh Maria Elena Duran Anthony Duran John Daniel Durino Collin Alex Earhart Harrison Taylor Easley Mary Alice Easterday Cole Allen Epley Sharon Kay Eylmann Jean A Farmer Alexander Feliciano Bruce Alan Fink Matthew D Fisher Valerie Fisher Chester W Fitch Kenni Pamela Fitzpatrick Elizabeth R Florence Exhibit 1, Page 10 of 17
Bekon Rose Flory Randall Jack Flowers Steven L Fredricks Ilya Frumkin Emily Rose Frye Patrick Joseph Fulks Corey Preston Galloway Courtney Nicole Garrett Jacob Gasho Erika Kjorlie Geery Courtney Leann Gehrke Erica G Geigerwolfe Richard Leo George Michael Shawn George Kyle Gerstner Shawn Michael Gibbs Cynthia A Glenn Jasmine Makena Good-Decosta Judy Ann Gragg Paul B Grant Lilbern Gene Green Sara Green Spencer Grob Amanda Suzanne Grooms Maria Patricia Guadian Celia Inez Gudenkauf Michaelle Gudino Victoria Grace Guerrero Allison Marie Gunnoe Jane Gunther Pamela J Hall Amy Lynn Haller Leah June Nelson Hallstrom Christopher Robert Handley Emma Hansen Jacob Harding Michael Richard Harter Nicholas Alexander Hayes Alma A Heckler Mackenzie Ann Hegedusich Dawn Marie Hein Michael Don Paul Henninger Manfred W Hentschel Harrison James Grey Hetler Wallace Taylor Hicklin Jared Travis Hicks Kristopher Hilding Dane Hill Exhibit 1, Page 11 of 17
Sue K Hobbs Donna Lynne Hobson Ross Hofbauer Mary Janet Hoffer Marjorie Jean Holzmeister Richard J. Holzmeister Danielle Skye Horne Jarrett Horsley Donald Edward Hoschouer Chloe Jackson Hough Jackson Gray Hoy Coty Ryan Huckleby Zeferena Nichole Huckleby Miranda Hughes Joseph A Hurley Robert Jospeh Irwin Monica Louise Jackson Roma Kay Jackson Alan Charles Jackson Alexis Renee Jenkins Floye Marie Jennings Lester Leon Jennings Judith Christine Jensen Eileen Louise John Gary Lynn Johnson Lynda Denise Johnson Carley Jean Johnson Anthony T.B. Johnson-Powell Dianne Karls Caroline Allison Kastor Charla Marie Keefer Joshua A Kennedy Leon S Kimball Karen Kinder Jon David Kletsky Ralph Klotz Heidi Koger Paula Denise Kraft-Cooper Kristen Kratz Judy Marie Krehbiel Ervin Roger Krehbiel Robert M Kruger Tiffany L Lambeth Aaron Charles Lamer Denise Janet Lampert Haylie Renae Lancaster Michael Ross Lane Brecken Leigh Laning Exhibit 1, Page 12 of 17
Susan Larson Louise E Lauridsen Patrick Ryan Laushman Lauren Laushman Linda L Lawrence Ashley Marie Leabo Emma Elizabeth Ledford Beth Leigh Susan Leiky Jennifer Anne Letner Charley Sabe Lewis Kristi Lewis Brianna L Lichtenauer Jo Elizabeth Lin Gaisheng Liu Jared Miles Long Sally Carol Luallen Carol M Lujano Katrina Anne Lundmark Daniel E Lynch Linda Major Chloe Alassandra Majors Sierra Lou Manns Jonathan Paul Marburger Jane Masheter Amanda M Mastinez John L Matthews Beverly A Mayer Samuel John McClain Lucy McCleary Linda Browne McCoy Barbara F Mccrary Gae McKay Aimee McLendon Marilyn Louise McNabb Madison Elise Meyer Joe Richard Milsap Apramay Mishra Ruth M Mitchel Steven Byron Mitchell Elizabeth Grace Mitts Nicole Marie-Alonge Monahan Jacquelyn T Monroe Brent Lee Montgomery Jeffrey Goodloe Moore Cortney Erin Moore Catherine Elizabeth Moore Jeffrey Morasco Exhibit 1, Page 13 of 17
Randolph C Moredork Bria Ann Morgan Jenny Morgison Joseph Morris Stephen Spencer Charles Morrison Yolanda Mountjoy Nancy Anne Moyer Keith David Muller Alexander Robert Murray Craig G. Murray Alexander Murray Lillie Musick Gregory Musick Jordan Ray-Christopher Myers Tanner Myers Sarah Naff Mark Daniel Nehring Forrest Gage Neibarger Tim Nevels Cherise LaVaughn New Carolyn T Nicholson Scott Robert Noltner Lauren Michelle Nordell-Morris Brian J North Marion John Novotny Jr. Zachary Aaron Oberzan Joseph O'Bryan Shellney Ann Oehlert Walter J Olker Baronika Ollie Alberta R One Road Bryce Ostrom Janette Janae O'Toole-Curran Betty L Parks Rebecca Parrott William Parrott Elizabeth Strawn Paulson Megan Paustian Joseph Isiah Pearce David John Pellett Michelle Pemberton Charlotte Leann Pemberton George A Penn Danielle Demby Pennington Kyrstan L Perry Taylor Anthony Petrehn Ace G Phillips Melissa Yvonne Pike Exhibit 1, Page 14 of 17
Judith Leila Pinegar Billy D Porter Kathryn Anne Porter Kiley Ashton Powers Dana M Prijatel Teresa Sue Prochaska John Prochaska Marlene K Putthoff Carey L Rainey Mary B Rakestran Sybil Elise Ralston Zarintaj Mofid Ramaley Lalitha Rao William Bryan Rector Sarah B Reding Richard Reding Matthew Reed Myra Jean Reinier Lynne Renick Debra A Renick Hannah Elise Reussner Helen I. Reynolds Helen Karlene Reynolds-Bennett Cynthia Ann Richardson David Riehn Sara Riehn Jason Robberson Corbin Robinson Claire Robinson Allison Suzanne Rodecup Lynne Ellen Roe Harlan Roedel Sidney Roedel Mary E Rogers Season Irene Simone Ross Pamela Jeanne Ross Meghan Elizabeth Roush Jennifer Rudolph Blair Russell Joetta Ryan Jackson Sabol Fred Sack James Richard Salyer Sophia Astrid Sanchez Laura Lee Sanders Stephanie Sue Sanford Josh Saunders Theodore James Savich Exhibit 1, Page 15 of 17
Joe W Scales Nita Jean Scales Robert A Schehrer Brenda Schenkel Karen K Schmitendorf Emily Catherine Scholle Daniel Louis Schuckman Erdin Schultz-Bever Andrew L Schwartz Saunny Scott Joanne C. Sedriks Cory Shane See Morgan Elise Sevart Ryan Cole Shelton Delaeny Brooklyn Shelton Amanda R Sherlock Gwendolyn Sibley Emily-Ruth McElhaney Sirridge Colleen E Skaggs Joanna Maureen Sloan Sean Patrick Smith David James Smith Katy Jo Smith Judith M Smith Tanner P Smith Edwin Irwin Smith Savanna Smith Brianna Smith Judith Ann Sneegus Gilberto Enrique Soto Joshua William Spence Scott M Spencer Michelle Elizabeth Stahl Monica Olivia Stark Sarah Marie Stauffer-Soderling Randy Stranghoner Amy L Stuber Stephen Stull Tomas Ough Stutzman James Herman Suderman Roberta J Suenram Kelly Lynn Sullivan Patrick M Sullivan Harrison Thomas Swartz Brittany Michelle Swearingen Phoenix Swedlund Holly D Taylor Justin Hanley Taylor Exhibit 1, Page 16 of 17
Nicole Tennapel David Arthur Theilen Sandy K Theilen Jeremy Allan Thoman Tremayne Thomas Yvonne Thomas-McGee Laura F Tiffany Elsie T Todechine Kayla Troop Elisabeth van de Liefvoort Wielstra Francesca Vance Dakota Vantbutan Michelle Marie Vassar Hallie Velez Dyan E Vespestad Kortney Dawn Voss Sally Jo Walquist Rachel Elizabeth Warkins Velda Colleen Weaver Diana Weaver John Aldridge Webb Stephen Loren Webb II Evan VanHouten Weisgran Lesa Ann Weller Mary Wentz Hugh Alleman Wentz Margaret Ann Wermy Ralph Wermy Jr. Katie Elizabeth Werner Pamela Jean West Dorothy Westerhouse Grace Ann Elizabeth Wheeler Kay M White Victoria Mikel Wiesing Sharon Wiggins Bill R Williams Doris Winchester Mary F Winter Sandra Spiller Wolf Kathleen A Wolf Amber Renee Wood Caroline R Wroczynski Harrison Ellsworth Wynn Ruth Yaregal Matthew Yates Garrett Young Kellyn Young Martha Alice Young Baker Exhibit 1, Page 17 of 17
Alan E Zarley Kyle Joseph Zerr Aichen Zhang Exhibit 2, Page 1 of 13 Exhibit 2, Page 2 of 13 Exhibit 2, Page 3 of 13 Exhibit 2, Page 4 of 13 Exhibit 2, Page 5 of 13 Exhibit 2, Page 6 of 13 Exhibit 2, Page 7 of 13 Exhibit 2, Page 8 of 13 Exhibit 2, Page 9 of 13 Exhibit 2, Page 10 of 13 Exhibit 2, Page 11 of 13 Exhibit 2, Page 12 of 13 Exhibit 2, Page 13 of 13 Case 5:12-cv-04148-JTM-KGG Document 1-1 Filed 11/09/12 Page 6 of 8 Exhibit 3, Page 1 of 3 Case 5:12-cv-04148-JTM-KGG Document 1-1 Filed 11/09/12 Page 7 of 8 Exhibit 3, Page 2 of 3 Case 5:12-cv-04148-JTM-KGG Document 1-1 Filed 11/09/12 Page 8 of 8 Exhibit 3, Page 3 of 3