A Shawnee County judge has ruled that the secretary of state didn’t violate the Kansas open records law when he decided to eliminate the ability of its election database to produce a report showing who cast provisional ballots.
District Judge Teresa Watson on Wednesday rejected a lawsuit brought by voting rights activist Davis Hammet, who argued that the secretary of state’s office violated the law when it removed a computer function for producing a statewide provisional ballot report.
Hammet had sought the information about provisional ballots to assist voters in solving issues that led to their ballots being set aside, whether it was because they lacked identification or voted at the wrong polling location.
Hammet was trying to help ensure that those voters could cast ballots in the next election and help increase voter turnout.
“This wasn’t the outcome we hoped for,” said Sharon Brett, legal director for the ACLU of Kansas. “We will confer with our client and decide on next steps.”
Watson ruled that there was nothing in the open records law that requires the secretary of state to create or maintain a computer program that has the capability of generating a statewide provisional ballot detail report.
The law, she said, requires only that he make the report open for inspection if and
when it is created.
“There is no statute within or apart from (the open records law) that requires the Secretary of State to create a statewide provisional ballot detail report either by hand or electronically,” Watson ruled.
“There is no statute that dictates how the Secretary of State must program the databases it uses to store information,” she wrote.
“There is no statute that requires the Secretary of State to create or maintain the most efficient and least costly electronic method for packaging large volumes of information for public consumption,” she wrote.
Civil rights lawyers representing Hammet had previously suggested that Scott Schwab’s office deliberately made it difficult to access the records after losing an earlier legal battle that ordered the records to be made public.
“Hammet understandably raises a question about why Schwab would purposely eliminate the ability to expediently and inexpensively produce a statewide provisional ballot detail report…even if the Secretary of State’s office has no use for it,” the ruling says.
“Schwab’s motives and reasoning are only conjecture at this point in the litigation, but they are not material to the purely legal questions on summary judgment.”
Schwab’s attorneys said that the provisional ballot report served “no functional purpose” for the secretary of state’s office and that state law didn’t require the collection of provisional ballot information.
They also said they were willing to ask the software contractor to write a program to manually pull the information Hammet sought if he paid for the cost.
Last year, Hammet prevailed in a lawsuit against the secretary of state seeking the provisional ballot report from the 2018 general election.
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.
The secretary of state gave Hammet the records he sought from 2018, but later removed the function for producing the report from its statewide voter database.
When Hammet sought the same report for the 2020 primary election, he was told the information was unavailable and that secretary of state’s office would have to retrieve the data – at a cost of $522 – from the software contractor.
Hammet argued that Schwab destroyed government records when his office directed the software contractor to remove the computer program that allowed the agency to generate the statewide provisional ballot report from information in its database.
The question then turned from the open records law to another part of Kansas statutes covering the preservation of government records.
Watson concluded that a computer function was not a “government record” under state law.
“The statewide provisional ballot detail report is a separate item that may become a government record only if and when it is created by the use of a computer program,” she wrote.
“But since the functionality itself is not a government record, removing the computer program making it possible to generate the statewide provisional ballot detail report does not amount to destroying a government record.”
