TOPEKA — Kansas Secretary of State Scott Schwab violated state open records law when he ordered a software vendor to disable the ability to produce a public record, the Kansas Court of Appeals ruled on Friday.
The ruling is the latest victory for Davis Hammet, a voting rights advocate, in his three-year legal fight with Schwab over access to provisional ballot data under the Kansas Open Records Act.
“By turning off the report capability, the secretary denied reasonable public access to that public record and the information within it,” Justice Stephen Hill wrote in the appeals court decision. “That action — choosing to conceal rather than reveal public records — violates KORA.”
Each election cycle, Kansans cast tens of thousands of provisional ballots, many of which are discarded. Some of the issues can be corrected. A voter may have neglected to update their registration after moving, or an election official may question the validity of a signature on a mail-in ballot.
Hammet, the president of Loud Light, which works to educate and engage young adults and underrepresented communities on elections in Kansas, has filed a series of requests for provisional ballot reports under the Kansas Open Records Act. The goal is to help voters have their ballots can be counted, and to research the issue to better advise public officials about policies that impact voters.
In an earlier lawsuit, Shawnee County District Judge Teresa Watson ordered Schwab to turn the information over to Hammet. Schwab responded by criticizing the court and asking ES&S, the software vendor for the state’s election system, to disable the reporting feature.
Hammet, who is represented by the American Civil Liberties Union of Kansas, responded by filing a second lawsuit. This time, Watson ruled that KORA doesn’t require public agencies to create a software functionality.
