RE: Application of KSA 25-213 to write in Candidacy of Laura Allen in Ellis County, KS
Dear Secretary of State Schwab:
Please be advised that I represent Laura Allen. She is a write-in candidate for County Clerk in Ellis County, Kansas.
Although the County Clerk of Ellis County has refused to release the results of the most recent election to us, despite my repeated requests for that information, she orally stated during the canvass last evening that Laura Allen received in excess of 5% of the total votes cast in the Democratic primary, and in excess of 5% of the total Democratic voter registration in Ellis County, at the last count, during the August 2020 election.
The Board of Canvassers. after receiving my input regarding the matter, instructed the County Clerk to convey to you the information that I had conveyed to them for your input.
Interestingly, Clerk Maskus did not solicit from me, nor did it appear that she took notes, regarding the extensive research which I did regarding the legislative history of KSA 25-213. The purpose of this letter is to convey to you the essence of that research, because I believe that the interpretation of that statute apparently being given to it by Clerk Maskus, and, apparently, based upon her oral statements. by you, is erroneous. The statute reads, in its essence, that when no nominating declaration has been filed, unless a person receives votes equal in number to not less than 5% of the total of the current voter registration designated (emphasis added) in the County in which the office is sought, the person's name shall not be printed on the general election ballot. That language was inserted in the statute via chapter 196 of the 2007 Session Laws of Kansas as a result of two House Bills introduced that year by the House Elections Committee. The House Bills were House Bill 2094 and House Bill 2332, both of which amended KSA 25-213 to include language that said. "5% of the total of the current voter registration of the party designated in the County in which the office is sought," in replacement of a 1995 amendment which had eliminated a prior reference to party affiliation. That 1995 amendment had read that a successful write-in had to be equal in number to not less than 10% of the electors who voted for the office of Secretary of State at the last preceding general election for such office in the county in which the office is sought. In the 2007 Legislative session, the Senate passed legislation that differed from the House legislation in regards to other sections that had nothing to do with the metric regarding the write-in issue and so a Conference Committee was appointed. The ultimate Conference Committee report approved, using the well-known tactic of "gut and go" via House Bill number 2128, which had dealt with recall issues before it was usurped for the purpose of amending 25-213. dropped the words "of the party", but retained the word "designated."
There was no reason for the Legislature to have retained that word, other than an intent for it to modify the language "5% of the voter registration." If the intent of the Legislature were, as propounded by the County Clerk, that the metric was all of the registered voters in Ellis County, the word designated would not have been used. The rules of logic leave no other conclusion. Read the sentence without the word "designated" and that is exactly what it would mean. With the word "designated," it is at best, latently ambiguous, and one should turn to the legislative history to clarify it. The legislative history leads one to the inescapable conclusion that the intent of the Legislature was that the designation was the election(party) selected by the write-in voters. Kansas has a closed primary system. In other words, Democrats and Republicans cannot cross party lines on election day. They have to vote in the election they are branded in. To count the Republican registration towards the metric by which Democrats have to qualify to become general election candidates via the write-in process is ludicrous. In Ellis County, for instance, with 18,000 registered voters, a write-in candidate, under Clerk Maskus's theory would have to receive 900 votes, or 24% of the Democratic registration. On the other hand, a Republican write-in candidate would have to receive only 9.9% of the Republican registration. Ignoring the fact that there is a clear Equal Protection violation, that simply docs not make any logical sense.
The purpose of this letter is to ask that you turn to the legislative history of this statute and the same research that has been done as set out above and inform the Ellis County Clerk that in order to qualify os o write-in candidate, it is necessary that a person receive votes equal in number to not less than 5% of the total of the voter registration designated for the election, either Democratic or Republican, where the office is sought. In the case of the County Clerk position in Ellis County, the calculation is simple, as the clerk has stated that the total Democratic registration was 3,873, ergo the total write-in votes necessary to qualify for the general election ballot should be 194. Again, although the Clerk has not complied with my request for release of that information, it is my belief that Laura Allen received far in excess of that number.
It would be appreciated if you would verify your receipt of this letter and confirm your response in writing.
The Board of Canvassers is meeting at 5:00 PM on Monday, and it would be appreciated if you would copy them on your response. also.
Thank you for your attention to this.
Very truly yours,
John T. Bird
Glassman Bird Powell LLP