Here’s why some Kansas counties will accept dozens of provisional ballots and others won’t

KANSAS CITY, Kan. -- Unaffiliated voters are creating a new twist in tallying the votes of Kansas' primary election.

On Monday, dozens of Kansas counties began canvassing nearly 9,000 provisional ballots from the primary election earlier this month. Some of the more populous counties, like Johnson County, will not certify the provisional ballots to the total vote count until Tuesday.

In the tight race for the GOP candidate for Kansas governor, as of Monday night, Secretary of State Kris Kobach is leading Gov. Jeff Colyer by 206 votes.

The Johnson County Board of Canvassers recommended more than 1,400 of the provisional ballots should be added to the statewide totals. The board also recommended just under 900 should not count.

Some of the reasons for rejecting a provisional ballot include one voter who wasn't 18 years old and 59 voters who didn’t have an ID. One man voted early and then died before the primary election. Johnson County also recommended that 35 ballots be disqualified because the voter didn’t declare a party affiliation.

That’s when an unaffiliated voter, someone not registered as either a Republican or a Democrat, votes in primary election. That's legal in Kansas -- as long as they register with a party when they vote, Johnson County Election Commissioner Ronnie Metsker said.

“If a voter is registered unaffiliated, they are given the option to affiliate at any given moment all the way up to and including the moment when they arrive at the polls,” Metsker said.

In most counties, an unaffiliated voter has to fill out a small form or check a box to identify they're declaring a party preference.

But how should election officials regard a ballot where a voter either forgot or wasn’t instructed to state a party preference?

On Monday, Johnson County officials said the 35 ballots in their county will not be added to the total. But Sedgwick County officials voted Monday that those ballots should be accepted. Wyandotte County Election Commissioner Bruce Newby also believes those ballots should be counted.

“It goes to voter intent,” Newby said.

Mark Johnson, a local attorney who teaches election law at the University of Kansas, also believes the unaffiliated ballots should be added to the total. He suspects the discrepancies across Kansas counties suggest the disputed race could be headed for a court battle.

Johnson County officials will certify the provisional ballots and add them to the statewide count Tuesday at 4 p.m. But then it's still far from over because Wyandotte County and some others don't canvass the votes until Thursday.