TOPEKA — Kansas Attorney General Kris Kobach issued a nonbinding legal opinion arguing state law required officials engaged in postelection audits to rely on original paper ballots instead of making use of optically scanned images of those ballots.
Kobach, a Republican who previously supervised elections in Kansas as secretary of state, published the assessment in response to concern expressed by Republican state legislators and election fraud conspiracy theorists. The issue emerged because officials in Kansas counties with substantial populations sought efficiencies by turning to electronically stored copies of ballots when engaged in spot audits.
The attorney general said in the Tuesday opinion sought by St. Marys Rep. Francis Awerkamp that election clerks performing postelection audits weren’t at liberty to substitute printed copies of ballot images.
“Reasonable people may disagree on how audits should be conducted, but the Legislature was quite clear in its language,” Kobach said. “The original paper ballots must be used.”
Clay Barker, general counsel to Secretary of State Scott Schwab, said optical scans of ballots were generated by a few counties with large populations to speed processing of votes, but a paper version of every Kansas ballot was retained. He has suggested the Legislature consider amending state law to affirm counties had the option of deploying computer technology in support of postelection audits.
Kari Sue Vosburgh, a Sedgwick County precinct committeewoman, asserted during a legislative hearing reliance on digital images of ballots could promote election fraud. She found support for that perspective among some House and Senate members.
“I think it’s a valid concern,” said Rep. Pat Proctor, R-Leavenworth.
In September, Kobach issued a separate nonbinding opinion that took the position original paper ballots had to be used in recounts of close races or when an outcome was challenged. An exception could be made, he said, if sponsors of a challenge preferred use of electronic records of ballots.
In that opinion, the attorney general said the recount requester could seek a hand recount of original paper ballots.
The 2022 Legislature approved a bill that became law requiring all voting systems used for elections in Kansas after Jan. 1, 2024, to feature “an individual, durable, voter-verified paper ballot with a distinctive watermark established by the secretary of state.” The statute required these ballots to be preserved by election officials “for purposes of any audit or recount” of a Kansas election.
