Mah v. Board of County Commissioners of Shawnee County, Kansas et al

Filing 14

MEMORANDUM AND ORDER denying 2 Secretary's Motion for TRO; and denying 5 Secretary's Motion to Amend Complaint. Signed by District Judge J. Thomas Marten on 11/15/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANN MAH,
Plaintiff,
v.

Case No. 12-4148-JTM

SHAWNEE COUNTY COMMISSION,
Defendant

KRIS W. KOBACH
Kansas Secretary of State
Defendant-Intervenor.
MEMORANDUM AND ORDER
The following matter came before the court on November 14, 2012, for hearing
on the Secretary of State’s Motion for Temporary Restraining Order (Dkt. 2) and Motion
to Amend Complaint (Dkt. 5). The Secretary asked this court for a Temporary
Restraining Order, a preliminary and permanent injunction, and declaratory judgment.
The following persons were present at the hearing: (1) Margie Wakefield, counsel
for Ann Mah, (2) Steve Smith, counsel for Ann Mah, (3) Kris Kobach, Secretary of State,
defendant-intervenor, (4) Ryan Kriegshauser, counsel for the Secretary of State, (5) B.J.
Harden, counsel for the Secretary of State, (6) Josh Ney, counsel for Ken Corbet, (7)
Evan Ice, counsel for the Douglas County Commission, and (8) James Crowell, Assistant
Shawnee County Counselor.

After hearing arguments from Mr. Kobach, Mr. Smith, Mr. Ney, and Mr. Ice, the court
denies the Secretary of State’s Motions.
I. Procedural Background
Representative Ann Mah, the incumbent candidate for the 54th District of the
Kansas House of Representatives, made a Kansas Open Records Act request seeking the
names of individuals who cast provisional ballots in her race. The Board of County
Commissioners of Shawnee County denied the request based on K.S.A. § 25-2422,
which prohibits disclosure of the contents of ballots “except as ordered by a court of
competent jurisdiction.” Representative Mah filed a petition in Shawnee County Court,
which she alleged to be a “court of competent jurisdiction.” Shawnee County Court
ordered the Shawnee County Election Office to disclose to the petitioner “the names of
all voters who cast provisional ballots for the 54th House District in Shawnee
County . . . by 6:00 p.m. on Friday, November 9, 2012.” The Court noted that the
petitioner was not requesting information regarding the content of any ballot or the
reason voters cast a provisional ballot. The Shawnee County Election Commission
disclosed the names before 6:00 p.m. on November 9, as the court had ordered.
On the same afternoon, Secretary of State Kris Kobach filed a Motion for
Temporary Restraining Order in U.S. District Court, District of Kansas asking the court
to prevent the disclosure of these provisional ballot voters’ names. The Secretary argued
that the disclosure of these names would be in violation of 42 U.S.C. 15482(a)(5)(B). On
Tuesday, November 13, the court held a phone conference with the parties. The court
scheduled a hearing with the parties for Wednesday, November 14 at 1:30 p.m. Over
2

the phone, the court directed Representative Mah not to contact any of the voters from
the list she had received and not to distribute the list further until after the hearing. The
court also directed the Douglas County officials to provide the list to Mr. Corbet, subject
to the same “no contact” order.
II. Legal Background
The Secretary’s requested relief is based on the Helping America Vote Act
(“HAVA”). Congress passed HAVA as a response to voting irregularities in Florida
during the 2000 presidential election. See Florida Democratic Party v. Hood, 342 F. Supp.
3d 1073, 1076 (N.D. Florida Oct. 21, 2004). In November 2000, if a person who showed
up to a polling place on election day was determined ineligible to vote by election
officials at that time, Florida did not allow the person to cast a ballot. Id. at 1077. As a
result, any incorrect determination that the person was ineligible to vote could not be
corrected. Id. Many other states had no system in place to cure this problem. Id.
Congress alleviated this problem by passing HAVA. This law requires a system
for provisional balloting, under which a voter could submit a ballot on election day but
it would only be counted if the person was later determined to have been entitled to
vote. See 42 U.S.C. § 15842(a). HAVA also requires the appropriate State or local election
officials to establish a free access system that a person casting a provisional ballot can
use to discover whether her vote was counted and if not, the reason for it. See §
15842(a)(5)(B).
The law states:

3

The appropriate State or local election official shall establish a free access
system (such as a toll-free telephone number or an Internet website) that
any individual who casts a provisional ballot may access to discover
whether the vote of that individual was counted, and, if the vote was not
counted, the reason that the vote was not counted.
States described in section 1973gg-2(b) of this title may meet the
requirements of this subsection using voter registration procedures
established under applicable State law. The appropriate State or local
official shall establish and maintain reasonable procedures necessary to
protect the security, confidentiality, and integrity of personal information
collected, stored, or otherwise used by the free access system established
under paragraph (5)(B). Access to information about an individual provisional
ballot shall be restricted to the individual who cast the ballot.
Id. (emphasis added). The Secretary asks this court for a Temporary Restraining Order
and injunctive and declaratory relief all on the basis that this emphasized section of
HAVA extends so far as to protect the names of voters who cast provisional ballots.

III. Legal Conclusions
The Secretary of State argued that this court has federal question jurisdiction
under 28 U.S.C. § 1331. The case is before the court on a question of interpreting a
federal law, giving this court jurisdiction under § 1331. The other parties did not argue
against jurisdiction, and this court agrees with the Secretary. Having established
jurisdiction, the court analyzes the law before it.
The Secretary argues that this section of HAVA must be read broadly to include
even the names of the voters who submitted provisional ballots. He argues that voting
by provisional ballot is private because it could reveal private information. For example,
if a voter drove to the polls without his driver’s license, this would require him to
submit a provisional ballot and might subject him to penalties for violating traffic laws
4

if his name was released. The Secretary worried about the hypothetical voter who might
be embarrassed by having to vote provisionally because he forgot to change his address
when he moved in with a girlfriend. Or that a person who forgot to register to vote
might be embarrassed by having the oversight made public. These potential
embarrassments are not at issue here, because only the names of the voters were
released, not the reasons why they had to submit provisional ballots.
The Secretary also argued that in small counties, revealing the names of voters
who submitted provisional ballots could reveal whom they voted for. The Secretary
provided an example in which ten voters cast provisional ballots, and after the
provisional ballots were counted Mitt Romney’s vote total increased by ten votes.
Releasing these voters names would logically show that they had all voted for Mitt
Romney. However, according to the Douglas County Commission’s counsel, the list of
voters who cast provisional ballots is released after the county canvass determines
which provisional ballots shall be counted. In essence, the risk of the Secretary’s
hypothetical actually occurring is not exacerbated by the release of these names before
the canvass; it will happen after the canvass regardless.
Finally, the Secretary argues that interpreting § 15482(a)(5)(B) to refer only to the
confidentiality of the ballot would result in a surplusage problem. The Secretary points
to § 15481(a)(1)(C), which states that a voting system must preserve the “confidentiality
of the ballot.” He distinguishes this from § 15482(a)(5)(B), which protects information
“about” a ballot, arguing that interpreting these two sections as both protecting only the
ballot’s contents would result in the latter phrase being mere surplusage.
5

The court disagrees with the Secretary’s reading of § 15482(a)(5)(B) of HAVA.
The plain language of the statute protects “access to information about an individual
provisional ballot.” It does not protect information “about the individual casting the
ballot.” The court need not address the Secretary’s argument based on a canon of
statutory construction. The court need not go any further than reading and applying the
statute’s plain meaning. Thus, § 15482(a)(5)(B) does not protect the names of the voters
who cast provisional ballots. As a result, the court lifts the Temporary Restraining
Order it had placed on the further dissemination of the list of provisional ballot casters,
as well as its directions restricting contacting the voters who cast provisional ballots.
The Secretary also asks the court to require the free access system in Shawnee
County to require an additional layer of security when a voter calls in to check on the
status of their provisional ballot. The Secretary believes there is a risk of fraudulent
calls, because the current system does not require any identification beyond the caller’s
name. Although the court sees merit in additional levels of security, it is not within the
purview of this court to enter an order requiring such an action. HAVA clearly states
that the specific choices on the methods of complying with the requirements of §15482
shall be left to the discretion of the State. See § 15485.

IT IS THEREFORE ORDERED this 15th

day of November, 2012, that the

Secretary’s Motion for Temporary Restraining Order (Dkt. 2) and Motion to Amend
Complaint (Dkt. 5) are denied.

6

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

7