WICHITA, Kan. — Kansas election officials began reviewing some 9,000 provisional ballots Monday as the two candidates in the state's tight GOP primary for governor appeared to dig in for a long and potentially nasty legal fight that could take weeks to play out.
Secretary of State Kris Kobach, a take-no-prisoners conservative, led the state's low-key Gov. Jeff Colyer by a mere 206 votes out of more than 314,000 cast after the first day of counting provisional ballots. But 43 counties — including the state's two most populous ones — are still left to report final results from the Aug. 7 election.
The canvass began early Monday in suburban Kansas City's Johnson County, the state's most populous county, where a board was set to review 1,800 provisional ballots — ones given at the polls to voters when their eligibility is in question. Seventy-six counties were to start canvassing Monday. Some will meet later this week and next.
It was unclear how many of the provisional ballots were from the GOP race. Based on past elections, Kobach said, it's likely that about two-thirds of them were cast in the Republican primary.
The disputed race seemed certain to intensify, with the candidates challenging each other's legal interpretations, sending observers to monitor the vote count and raising the idea of lawsuits.
A new fight was brewing on how to count unaffiliated voters who were simply given a provisional ballot by poll workers without first having them fill out a party-affiliation statement. It was unclear how many ballots fell into that category.
A legal opinion issued Monday by the governor's top attorney took issue with the guidance from the person Kobach appointed to oversee vote counters after he recused himself.
Assistant Secretary of State Eric Rucker told county election officials Sunday that if an unaffiliated voter did not first complete a declaration of party affiliation, that voter was not entitled to cast a ballot. The opinion from the governor's office said provisional ballots cast by unaffiliated voters in a primary should be construed as evidence of voter intent and must be counted.
Johnson County officials said Monday they did not count provisional ballots in which the voter did not complete the party affiliation declaration. Sedgwick County, the next largest county, said it counted ballots from unaffiliated voters who had mistakenly been given provisional ballots by the poll worker.
The counties have until Aug. 20 to finish the review of ballots.
"We're following the same procedure that we always do. It just seems to be a bit more intense, the stakes seem to be a bit higher," said Johnson County Election Commissioner Ronnie Metsker. "But we have sought to make that have no effect on anything at all on how we do the process."
The canvassing board met for about 30 minutes in a small, crowded conference room. Commissioners asked Metsker a few questions about the various categories of votes that were either recommended for approval or disqualified. There was little contention and no arguing.
With such a slim margin separating the candidates, the canvass will be closely watched. Colyer's campaign on Friday announced plans to have representatives in all 105 counties when provisional ballots are reviewed.
Not all of the provisional ballots will affect the vote totals in the GOP primary. Some were cast in the Democratic primary, and others were cast by unaffiliated voters.
Washburn University of Topeka political scientist Bob Beatty said while Kobach played up President Donald Trump's endorsement of him in the final days of the campaign to build enthusiasm among Trump voters and other Republicans, Colyer devoted resources to getting supporters of the other candidates and unaffiliated voters to the polls.
"The Colyer campaign had a fairly strong get-out-the-vote organization, and part of that is calling (those who are) unaffiliated and letting them know they can actually vote on Election Day," Beatty said, adding that it is possible both campaigns believe those unaffiliated voters tilt toward Colyer.
Attorney General Derek Schmidt is already considering the possibility that one of the candidates will file a lawsuit challenging the election results. He sent a letter to county election officials reminding them to preserve "any paper files, notes or electronic data related in any way" to the election.
Colyer's spokesman, Kendall Marr, said Monday the campaign is waiting to see how the count turns out before deciding whether to sue.
Both campaigns said they planned to continue campaigning as if they won the Republican nomination even as the canvass continues.
"The liberals are hoping for a prolonged legal battle and a fractured Republican Party. They won't get it," Kobach's campaign manager, J.R. Claeys, said in statement.
Colyer has questioned whether Kobach was advising counties not to count some mail-in ballots, including those with missing or unreadable postmarks, even if they arrived by Friday, which Colyer said violates the law. He also said he heard reports that some unaffiliated voters — who by law can declare an affiliation at the polls and vote in a primary — were given provisional ballots instead of the regular ballots they were due.
In a letter Thursday to Kobach, Colyer wrote that circumstances "obviously increase the likelihood that one of the candidates may seek a recount, or even the possibility of litigation."
Kobach rejected Colyer's criticisms of the secretary of state's actions.
"As governor of Kansas, your unrestrained rhetoric has the potential to undermine the public's confidence in the election process," Kobach wrote.
Despite holding what is usually a low-profile state post, Kobach gained a national following with his tough stand on immigration and his push for stricter voter ID laws. Polling has shown he has strong name recognition — and high negatives.
On Friday, he stepped aside from his duties as the state's top elections official until the primary outcome is resolved, but Colyer argued that Kobach still has a conflict of interest because Rucker, his top deputy, is taking over Kobach's responsibilities.
The secretary of state's role in the actual counting of ballots is limited. His office provides guidance, compiles statewide vote tallies and provides general supervision.