Kris Kobach Should Recuse in the Kansas Republican Primary [UPDATED] [UPDATED]

Last Tuesday's Republican primary in Kansas has the two candidates for governor separated by fewer than 200 votes, out of over 300,000 cast, with all precincts reporting.  There are still some absentee and provisional ballots to be counted, but it seems certain, as the New York Times reports, that the race is headed for a recount.  As the sitting Kansas secretary of state, however, Kobach himself will be in charge of supervising the recount. The conflict of interest is glaring and hardly needs to be pointed out: Kobach's own political interests are directly at stake in a process superintended by his office.

Remarkably, Kobach has announced that he has no plans to recuse himself, as reported in the Kansas City Star:

“The recount thing is done on a county level, so the secretary of state does not actually participate directly in the recount,” Kobach said at a campaign event in Topeka after initial results showed him winning by fewer than 200 votes.

“The secretary of state’s office merely serves as a coordinating entity overseeing it all but not actually counting the votes,” Kobach said, contending that his role puts him at arm’s length from the actual recount.

 Kobach evidently has no sense of either chutzpah or irony. The chutzpah is apparent in his argument that "overseeing" and "coordinating" the recount gives him no potential advantage or influence over the outcome. The irony is palpable, given Kobach's long-standing insistence that there has been massive illegal voting at the county level, including in Kansas.  

 

It appears that no Kansas law requires Kobach's recusal, but the Kansas City Star has nonetheless called for him to step aside to protect the appearance of fairness.  Jeb Bush did just that in 2000, when he announced that he would play no role in the Florida recount that ultimately gave his brother the presidency.  In this instance, Kobach's interest is even more direct than was Jeb's.

 

In any case, there are only two possible interpretations of the secretary of state's role in the recount:  either he has some involvement in it or he doesn't.  In the first case, he obviously must recuse himself.  In the second case, there is no reason that he shouldn't.  It is axiomatic in our judicial and political system that no person should be a judge in his own cause, or even appear to be. As the Kansas City Star pointed out, "any perceived involvement by Kobach in a recount could further damage the voters’ confidence in the outcome and faith in the state’s election system."

 

What is Kobach trying to prove?

 

 [UPDATE] It appears that Kobach's office already made a 100 vote error in his favor. According to the Topeka Capital-Journal, Thomas County reported 522 votes for Colyer, but the secretary of state's office recorded only 422.  The error was apparently caught by the Thomas county clerk and not by Kobach's office, reducing Kobach's margin by more than half.  No one has suggested that the error was intentional, or that Kobach played any role in it, but it underscores the importance of preserving -- or in this case, creating -- the appearance of impartiality.

 

There will almost certainly be a recount, but under Kansas law it must be paid for by the party requesting it.  That would obviously the party who is behind in the count when the final tally is entered, which means that Kobach also has a financial interest in coming out ahead even if the result is eventually overturned following a recount.

 

Another [UPDATE] is after the jump.

 

[UPDATE #2] According to the Kansas City Star, Gov. Jeff Colyer (the other candidate) called on Kobach to fully recuse himself and to stop giving advice to counties about the vote count: 

“It has come to my attention that your office is giving advice to county election officials — as recently as a conference call yesterday — and you are making public statements on national television which are inconsistent with Kansas law and may serve to suppress the vote in the ongoing primary election process,” Colyer said in a letter.

[Colyer's spokesperson Kendall] Marr explained in a phone call that the campaign has heard that Kobach’s office told county clerks to disregard ballots with a smudged postmark. Marr said that ballots received before a Friday deadline need to be counted.

Kobach later announced on CNN that he would recuse himself:

“I’ll be happy to recuse myself. But as I say, it really doesn’t make any difference. My office doesn’t count the votes. The counties do,” Kobach said in an interview with host Chris Cuomo.

 

That was not good enough for the Colyer campaign:

 

“We don’t have an official recusal,” Marr said. “We want to see what that looks like tomorrow. We want to make it’s not a symbolic recusal. The secretary of state has a substantive role in this process and the recusal needs to be substantive.”

Marr added that “on top of the recusal, we’re also asking that the secretary of state stop giving incorrect information to the counties, particularly related to the mail-in ballots.” 

Comments

[anon]

"Kobach evidently has no sense of either chutzpah or irony."

I think you mean "Kobach evidently has chutzpah."

Second, you say: "In the second case, there is no reason that he shouldn't."

No, Steve, the burden is on you to say he should.

You've done that, of course. YOu say: "no person should be a judge in his own cause, or even appear to be."

If the SoS was a candidate, overseeing the electoral process, should you not have called for recusal before the election? After all, according to you, isn't the SoS the "judge" of the election, whether the vote count is close or not?

[Anon]

Kobach is a hack, and won’t recuse himself for the same reason trump met with the Russians: it gives him a better chance to win, morality and fairness be damned.

[anon]

Thank goodness Democrats act only on the basis of principle, and won't let morality and fairness be damned to ensure their success. We are so blessed to have such saints among us.

[anon]

From Wiki:

“In 1984, Kobach graduated from Washburn Rural High School in Topeka, Kansas, where he was co-valedictorian, and class president.[35] He earned his Bachelor of Arts degree in Government from Harvard University, graduating summa cum laude and first in his department.[36] … From Harvard, Kobach went on to earn an M.A. and D.Phil. in Politics at the University of Oxford, attending having been granted a Marshall Scholarship. Returning to the U.S., he studied at Yale Law School, where he earned a J.D. degree in 1995,[1][39] and became an editor of the Yale Law Journal. During this time, he published two books: The Referendum: Direct Democracy in Switzerland (Dartmouth, 1994), and Political Capital: The Motives, Tactics, and Goals of Politicized Businesses in South Africa (University Press of America, 1990).”

Should we label anyone we disagree with a “hack”? What label should we use to describe Anon's comment above, labeling Kobach a "hack"?

[anon]

And, btw, are you all aware that this is PRIMARY election, and a contest between two REPUBLICANS?

As Politico asks: "Wouldn't the Democratic candidate ... prefer to run against a polarizing and unpopular figure like Kobach?" Indeed, why the Lubet treatment here?

Perhaps this, again from Politico:

"So why wouldn't Democrats want to run against a target like [Kobach] ... In brief, because a Colyer candidacy would more likely make the Kansas gubernatorial race a referendum on something unpopular: former Governor Sam Brownback’s ruinous tax cuts. Whereas a Kobach campaign is likely to make the election a referendum on something far more popular among Kansas voters: President Donald Trump."

Principle, only principle, folks.

And, BTW, the vote counting is going Colyer's way right now. Gee, with all this attention on his conduct, Lubet's theory that Kobach is fixing/can fix the results is ... validated????

[Scott Pruitt Edndowed Chair in Environmental Justice]

Here lies Ethics, leadership, democracy, fair play. September 17, 1787-January 20, 2017. RIP

[Scott Pruitt Edndowed Chair in Environmental Justice]

anon,

With credentials and smarts like that, he should know better. He is using his education to take advantage of people he is supposed to serve. Think of all the people who work at Walmart, Drivers, farmers, factory workers, teachers, police officers in Kansas....It's not a calling or passion...this Kansas gig is a stepping stone for him.

[anon]

A comment posted above pointed out that correction of the error undermines your "the fix is in" argument ... shouldn't the "update" to your post address the common sense conclusion that "Gee, with all this attention on his conduct, Lubet's theory that Kobach is fixing/can fix the results is ... validated????"

[Anon]

Is is possible that Kobach being a hack says nothing at all about the virtue of Democrats?

[anon]

Anon

No. Because these days it is more likely to be a Democrat who will not only reflexively, angrily and falsely shout out "Hack" about someone with credentials which one suspects are far more impressive than his simply based on tribal loyalty, but will double down and stick to that false label even after it is shown to be demonstrably wrong. Such persons ignore facts, while constantly accusing others of doing so, and never, ever, look at their own party and examine its faults in an honest and forthright way.

Need proof. Read your own comments, and the posts on this website.

[anon]

BTW, only a "hack" would misuse the word "hack," which in this context means: "working for hire especially with mediocre professional standards ·a hack journalist."

[Scott Pruitt Edndowed Chair in Environmental Justice]

Hack? Does this fellow drive a cab too?