(Updated to include reaction from Hammet and Schwab)
Voting rights activist Davis Hammet on Friday won the right to access the names of voters who cast provisional ballots during the 2018 general election.
Shawnee County Judge Teresa Watson ordered the secretary of state’s office to make public a report that shows the names of provisional ballot voters and whether their ballots were ultimately counted.
Secretary of State Scott Schwab denied the records request, saying federal law created an exemption to the state’s open records law and because there was a constitutional right to informational privacy about whether a voter cast a provisional ballot.
However, Watson disagreed, finding that disclosure of the information was not prevented by federal or state law.
She said making the information public doesn’t infringe on someone’s right to “informational privacy” as recognized within the 10th federal judicial circuit.
She ordered the secretary of state to provide the information to Hammet before 5 p.m. Monday. The secretary of state must redact Social Security, driver’s license and state identification numbers.
“Today, the Kansas judiciary paid disrespect to the intent of policy,” Schwab said in a statement.
“Our priority has been, and will continue to be, that every voter has the right to cast a ballot without fear of harassment, intimidation, or retaliation,” he said.
“The entitlement of these activist organizations to confidential information of those they also claim to champion, is sad.”
Hammet is seeking the voter registration identification numbers, names, addresses and whether the provisional ballots were counted.
He also wants to know the reason why any provisional ballot was not counted.
Hammet wants the information to assist voters in solving issues that led to their 2018 ballots being rejected before the upcoming August 2020 primary.
There were 29,000 provisional ballots cast in 2018, but there are only 35 names in the system that are available to the public, the court ruling said.
The secretary of state’s office said that county election officials are responsible for clearing the voter information system after the election is completed.
Hammet said if the secretary of state’s office had fulfilled his original request from September of 2019 sooner he would likely receive more names.
“There would have been a lot more data in there in 2019 when I requested it,” he said. “They have done harm that can never be undone.”
Watson relied in part on a court decision from Johnson County where a judge ordered the county election commissioner to comply with the open records law and make available a list of the voters who cast provisional ballots in the 2018 primary.
While Watson noted that the Johnson County court decision was not binding, “its logic is sound and the court finds it persuasive.”
Hammet has been working on getting information about provisional ballots since 2018 when they loomed large in the narrow Republican primary for governor when former Secretary of State Kris Kobach edged Gov. Jeff Colyer.
He has been asking for provisional ballots in all 105 counties. He said Watson’s decision will ensure that information about all provisional ballots will be open record.
“It’s a huge win because basically election officials know that the ballots that they choose to count or not, that information will be scrutinized,” he said.
“That’s a very, very good thing, because that makes them really think carefully about rejecting a ballot,” he said.
