By CRISTINA JANNEY
Hays Post
District Judge Blake Bittel on Wednesday set Dec. 31 as the date for a hearing on a lawsuit that contests the race for the 111th Kansas House District seat.
Democrat Eber Phelps lost to Republican Barb Wasinger by 35 votes after a recount was conducted. The Board of Canvassers voted 2-1 to certify the results a second time.
A group of seven Hays residents filed a lawsuit against Wasinger alleging voting irregularities led to Wasinger improperly being named the winner of the election. The group most notably included former Kansas State Sen. Janis Lee. Lee currently serves as vice president of the Ellis County Democratic Party.
Arguments for Phelps
The suit levels a number of allegations against County Clerk and Election Officer Donna Maskus. They range from not properly maintaining and testing the county’s electronic voting machines to improperly handling the recount.
But in new allegations, the filers of the suit claim that because Maskus failed to do her job properly that “some voters were deprived of the right of voting for the candidate they intended and such deprival could change the result of the election.”
The suit goes on to claim that illegal votes were counted while legal votes were not and errors in counting the votes could change the outcome of the election.
Motion to dismiss
Attorneys for Wasinger filed a motion to dismiss the case on Monday.
In the motion, attorney Joshua Ney alleged the Phelps’ supporters provide no specific proof any of Maskus’ actions or any other of the alleged voting irregularities, including failing to test the voting machines, changed the outcome of the election.
Citing a Supreme Court case, Ney said in his motion, “the courts should go to extreme lengths to preserve the validity of all elections, and be slow and reluctant to override the clear intent and purpose of the voters.”
Ney said any objections regarding provisional ballots should have been made during the canvas. He also noted the Phelps supporters have not pointed to any specific improperly counted ballots.
The Phelps supporters also alleged long lines at the polls caused by problems with the voting machines could have dissuaded voters from casting ballots. However, Ney noted if a voter chooses not to vote, that is not grounds to contest an election. He also noted the lawsuit did not specify any specific voters who were unable to vote because of long lines at the polls.
The judge will consider the motion to dismiss before the case proceeds to trial on Dec. 31.
Protection of information, inspection
During a conference on Wednesday, the judge agreed to put a protective order in place to secure the names and personal information of voters in the case.
The judge also agreed to allow the ballots and voting machines to be inspected per state statute. This provides for a three-person inspection team appointed by the judge.
State statute requires a hearing on a contested election to be heard 20 days from the date the case was filed. Dec. 31 is the last day the case could be heard per that requirement. However, the statue does not specify how long the judge has to rule in the case.
Another conference call in the case is set for 10 a.m. Dec. 27.
The Kansas 2019 Legislative session is set to start Monday, Jan. 14.
Hays Post reporter Jonathan Zweygardt contributed to this story.