Kansas Republicans say ‘Election Day’ should mean Election Day. Is that possible?

Tammy Ljungblad/tljungblad@kcstar.com

Kansas Republicans have repeatedly said they want “Election Day” to mean Election Day as they weigh new rules to restrict mail-in ballots and drop boxes.

The phrase is a callback to the 2020 election when ballots counted after election night secured President Joe Biden’s victory in the Electoral College over former President Donald Trump.

But speaking to Kansas House Republicans Wednesday, Kansas Secretary of State Scott Schwab said he hated the phrase.

“Election Day has never meant Election Day,” said Schwab, a Republican from Olathe who has pushed back on conspiracy theories pushed by other members of his party.

Election officials, Schwab said, are doing a wide range of things on Election Day and will never count all the ballots. Election results themselves aren’t formally certified until weeks after ballots are cast.

But as election denialism still sweeps through Kansas three years after the 2020 election and Trump mounts a run for the White House in 2024, state lawmakers contend changes to election law could restore confidence —- even as opponents say it will make voting more difficult and election administration more burdensome.

Republican lawmakers want to impose new limits on advanced and mail in voting, mandating ballots arrive back at the election office earlier and placing new limits and requirements on drop boxes.

“I’ve been very frustrated over the last two years since the 2020 election that we’re not having a conversation,” said Rep. Pat Proctor, a Leavenworth Republican who chairs the House Elections Committee. “One side is expressing concerns that run a spectrum, I acknowledge, from reasonable to maybe not as reasonable. And the other side refuses to engage in that conversation.”

“We need to find a way to bring these folks back into the fold and improve voter confidence.”

On Tuesday, lawmakers advanced a bill that would require mail-in ballots to be returned to the county election office by 7 p.m. on Election Day. The legislation would eliminate an existing grace period that allows ballots to be counted that arrive up to three business days after the election as long as they are postmarked by Election Day.

The legislation centers around an idea of ensuring Election Day is Election Day and limiting the number of ballots that are counted in the days after the election.

“Allowing ballots to be received days after an election can delay results. Delay sows doubt,” Madeline Melissa, a fellow at the Opportunity Solutions Project, said in written testimony.

Opportunity Solutions Project, a right-wing Florida-based group which has pushed bills on elections since the 2020 election, was the only organization to testify in favor of the bill.

But election officials say that effort is futile because elections are not certified until weeks after the election and it is not simply mailed ballots that are counted after election night.

Rep. Brandon Woodard, a Lenexa Democrat and the top Democrat on the Elections Committee, said the better solution to restore voter confidence is assuring voters elections are secure.

“It’s our responsibility to uphold the sanctity of elections,” Woodard said. “The proposals I would want to entertain make it easier to vote. But me saying something should be easier to vote is taken by this faction of people, more often times within the Republican Party, who regardless of what we do or say are going to believe that unless their candidate won the election it was rigged.”

Schwab has adamantly insisted elections in Kansas are secure and urged others in his party to do the same.

His office testified neutral on the grace period bill, stating it was a policy decision while noting that providing results the night of the election is a courtesy. Clay Barker, the deputy Kansas secretary of state, said the office estimated 1,000 ballots arrived statewide after Election Day in 2022.

Schwab’s office forcefully objected to a proposal in the house to limit the number of drop boxes counties could use and place stringent security requirements on those drop boxes. He’s argued drop boxes are more secure than the post office because the ballot is handled directly by election officials.

“Why in God’s green Earth would you give your ballot to the federal government?” Schwab asked Wednesday.

The bill’s only proponent was again Opportunity Solutions Project, which testified that drop boxes represented a security risk to elections. Since drop boxes came into wide use in Kansas in 2020 there have not been security issues.

Speaking to reporters last week Kansas Attorney General Kris Kobach, a former Secretary of State who has a long history of exaggerated voter fraud claims, said he believed drop boxes made it hard to enforce Kansas’ laws limiting the number of ballots a voter could return on behalf of other voters.

Voter confusion

Opponents said another change to the rules would cause confusion and needlessly make elections more difficult for counties and voters.

Rick Piepho, the Harvey County clerk and secretary of the Kansas County Clerks and Election Officials Association, said about 34% of advanced ballots were returned in his county by drop box in 2022.

“It’s a good tool, especially with the mistrust in delivery by the U.S. Postal Service,” Piepho said.

Fred Sherman, the Johnson County Election Commissioner, said the county would manage with any changes, as they have in the past. But that voter confusion is possible, as it is with any change.

“It is a constant challenge in trying to get good quality uniform information to all voters when there seem to be some moving targets or when there are changes in deadline and parameters,” he said.

Proctor said he’s more inclined to move forward with a bill that allows the Secretary of State’s office to regulate drop boxes, a bill that could open the doors to a ban on drop boxes but does not limit them directly.

“I think it’s quite possible that the rules that are promulgated as a consequence of that legislation if it passes will not be the type of rules that people advocating the legislation will expect,” said Mark Johnson, a Kansas attorney who specializes in election law. “I think they will be far more encouraging of the use of drop boxes.”

The legislative discussion comes as the Kansas Supreme Court mulls a case that is, in large part, centered on voter confusion.

In 2021 the Legislature passed a bill criminalizing the impersonation of an elected official. Three civic engagement organizations — Kansas Appleseed, the League of Women Voters and Loud Light — challenged the law contending it puts volunteers registering new voters at risk.

Under the law, the organizations argued, volunteers could be criminally prosecuted if they were mistaken for an elected official.

While arguing in front of the Kansas Supreme Court Wednesday the attorney for the organizations, Elisabeth Frost, contended that this risk is especially relevant in the current era.

“We are currently in a climate where lots of people believe what frankly I believe are unreasonable things. But lots of other people don’t believe they’re unreasonable,” Frost said. “Particularly when it comes to the activity of election officials and people who work in and around elections.

Bradley Schlozman, a former assistant U.S. attorney general during the Bush administration who represented Kansas in the case, said the issue didn’t apply if the court looked to a standard of whether a reasonable person would believe the volunteers were impersonating election officials.

“In any society there will be people who are really naive or willfully blind. We see that in the election deniers, there are some people you’re never going to convince,” Schlozman said.