Nearly 31 percent of registered voters in Kansas have no party preference but they are allowed to vote in the Democratic and Republican primaries if they declare allegiance to one of the parties before casting their ballot.
But these unaffiliated voters and what constitutes "declaring allegiance" are at the center of an increasingly contentious battle as 298 votes separate Secretary of State Kris Kobach from Gov. Jeff Colyer out of more than 314,000 ballots cast in the state's Aug. 7 Republican primary for governor.
Currently, local election officials are reviewing an estimated 9,000 provisional ballots to determine which ones will be counted and who will face Democrat Laura Kelly, a longtime state legislator from Topeka, and likely independent candidate Greg Orman, a Kansas City-area businessman, in November.
There are questions surrounding how voters with no party preference were treated when they showed up at the polls.
By law, they are allowed to declare a party preference by signing a statement and can cast a regular ballot.
But there have been reports that some of these voters were mistakenly directed to cast a provisional ballot and were not told they had to sign a party declaration.
Assistant Secretary of State Eric Rucker, who is overseeing election certification after Kobach recused himself, has told local officials that Kansas law requires a party declaration be completed.
"If an unaffiliated voter does not complete a party affiliation document, that voter is not entitled to vote at a party primary election," Rucker said Sunday in a statement.
But the governor's office has said provisional ballots cast by unaffiliated voters in a primary should be considered evidence of voter intent and must be counted.
HOW COMMON IS THIS?
States vary considerably in who can vote in party primaries.
Nine states, including Florida and Nevada, only allow voters registered with a party to vote in primaries. These are considered closed primaries, and any registered independents or unaffiliated voters are not allowed to cast ballots unless they register with a party in advance. The goal is to discourage crossover voting, in which members of one party vote in another party's primary in an effect to sway the outcome in their favor.
Fifteen states, including Georgia and Texas, let anybody vote in a primary. In these open primary states, each voter selects a ballot from either party and that information is kept private. They are not considered registered with that party.
Some states allow independents to remain unaffiliated, and some are like Kansas in that a party declaration is required.
In Kansas, unaffiliated voters outnumber registered Democrats. Registered Republicans comprise the bulk of all voters in the state.
Stephan Metzger, 27, of Manhattan, has been unaffiliated since he registered to vote and Tuesday was the first time he decided to vote in a primary. He was able to cast a regular ballot after signing a party declaration.
"From a purely selfish standpoint, it's nice to affiliate the day of," Metzger said. "Typically, if you want to switch parties, you have to do that a month before the actual election, and a lot can happen in that last month that could sway you one way or the other."
WHY DID SOME UNAFFILIATED VOTERS RECEIVE PROVISIONAL BALLOTS?
It appears some poll workers mistakenly thought unaffiliated voters should be given provisional ballots instead of a regular ballot, as outlined in state law.
It's not clear how many of the 9,000 provisional ballots handed out on Election Day were unaffiliated voters. More information is likely to be released in the coming days as local election officials continue their ballot reviews.
In Johnson County, the most populous in the state, officials said there were 92 unaffiliated voters who were mistakenly instructed to cast a provisional ballot on Election Day.
COULD THIS AFFECT THE OUTCOME OF THE RACE?
Yes. Every vote matters with just 298 votes separating the two leading GOP candidates.
And the battle over these provisional ballots could very well end up in a courtroom. A key legal question would be whether a poll worker's failure to provide a party declaration form to an unaffiliated voter negates that voter's ballot. In general, it should not but how state law is written and whether there is any legal precedent on this question will determine the answer, according to Myrna Perez, deputy director of the Brennan Center's Democracy Program.
"Voters should not have to bear the brunt of poll worker error, when there is a way to assess or account for voter intent and to effectuate the reasonable steps the voter undertook to cast a ballot," Perez said. "Mistakes that were committed in response to instructions from poll workers should not impede their ability to have a voice."
Some 35 provisional ballots in Johnson County were not counted because an unaffiliated voter did not complete the declaration for party affiliation. In Sedgwick County, the second most populous county, election officials said they would count all provisional ballots cast by unaffiliated voters regardless of whether a party declaration was completed as long as the voter did not intentionally refuse to sign it.
"But where unaffiliated voters appeared at a voting place and expressed their desire to cast a ballot, their votes should be counted, even if the election worker made a mistake in the process of permitting that voter to cast a ballot," County Counselor Eric Yost wrote in a letter to the Board of Canvassers.
In Sedgwick County, there were 187 provisional ballots attributed to clerical errors and the vast majority of those involved unaffiliated voters, according to election officials. All those ballots were counted, along with 14 other unaffiliated voters who did receive the correct paperwork but failed to complete it properly.
Counties have until Aug. 20 to finish the review of ballots.
Cassidy reported from Atlanta. Follow her on Twitter at http://twitter.com/AP_Christina .
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