‘We would all be breaking the law’: Kansas runoff election bill draws criticism

TOPEKA — A bill that would implement runoff elections statewide is costly, damaging to voters and potentially illegal, critics say.

Under House Bill 2013, if a candidate for a statewide office doesn’t receive a majority of votes in a general election, a runoff election would be held between the two candidates who garnered the most votes. The legislation would be in effect for candidates running for the positions of governor, lieutenant governor, attorney general, secretary of state, state treasure and commissioner of insurance.

Runoff elections would be held the first Tuesday in December, unless postponed by court order. If passed, the legislation would take effect immediately.

Rep. Les Mason, a McPherson Republican and the only person who spoke in favor of the bill during a Tuesday hearing by the House Elections Committee, said HB2013 would shore up Kansans’ faith in elections. Mason, who asked for the bill to be introduced, said he wanted to open “this can of worms” because of his concerns about recent gubernatorial elections.

Mason said in the past three elections, candidates have gotten into the governor’s office with less than 50% of the vote, and that candidates had been propped up with dark money.

Democratic Gov. Laura Kelly narrowly won reelection against Republican opponent Derek Schmidt in the November midterms, with 49.54% of the vote compared to Schmidt’s 47.33%. In 2018, Kelly beat out Kris Kobach, with 48.03% of votes to his 42.96%. In addition to Libertarian candidates, independent Dennis Pyle was on the ballot last year, and independents Rick Kloos and Greg Orman were on the ballot in 2018.

Republican Gov. Sam Brownback won reelection in 2014 with 49.82% of the vote, defeating Democrat Paul Davis with 46.13%.

Election security has been an increasingly heated subject in the past few years, with Republicans on a national and local level denying the results of the 2020 election. Kansas Republicans have called for more stringent voting security measures, despite a lack of evidence confirming widespread voter fraud. More restrictive voting legislation and new congressional maps have been criticized for blocking access to voting in Kansas, including 2021 legislation that put restrictions on ballot collection.

A bill introduced this legislative session, House Bill 2056, would require all advance ballots to be returned by 7 p.m. on Election Day, and other election bills are expected to be introduced as the session continues.

Mason said implementing a runoff election would foil dark money funding and also give candidates more confidence in governing.

“My feeling is that Kansas deserves to have that confidence in whomever we install in the office that the majority of the public supports them,” Mason said. “I also feel it’s important for that candidate who ultimately wins to feel like they have some sort of a mandate. I think it’s really hard to say, ‘I’ve got a mandate to govern,’ at 47% of the popular vote. That means that 53% did not vote for them.” 

While the bill has been promoted as a way to increase voter involvement, several concerns surfaced during the hearing.

In a fiscal note on the bill, Adam Proffitt, the governor’s budget director, noted the legislation could violate federal and state law, as military members and citizens overseas need to receive a ballot a minimum of 45 days before the election.

“The agency indicates that the United States Department of Justice likely would pursue legal action to enforce the 45-day deadline,” the fiscal note reads. “Any litigation fees would be the responsibility of the agency. The agency cannot estimate possible litigation costs.”

Proffitt’s note also said counties would have to pay millions more in election costs with the bill’s implementation, as Kansas counties conduct and pay for elections. Under the agency’s estimate, counties’ expenses could be between $5 million to $6 million for printing ballots, renting poll places and other election needs.

Harvey County Clerk Rick Piepho, who also serves as the Elections Committee Chair for the Kansas County Clerks and Elections Officials Association, said the bill needed to be more thought out, especially since the short turnaround period means mail-in ballots and overseas ballots couldn’t be sent out in the legally mandated time frame.

“The minute this election is called, we would all be breaking the law,” Piepho said.

Piepho estimated that it cost about $25,000 to conduct countywide elections in Harvey County, serving about 23,000 voters. He said it would be difficult to include runoff election costs in the county budget, since they wouldn’t know when or if a runoff election would be held and election staff would have little preparation time.

“In terms of time frames, cost, I think a lot of that would need to be more clearly defined, and/or you’d have to make some exceptions to advanced deadlines,” Piepho said. “There’d be a lot more than this short little bill if you were to make it work.”

Several voting rights advocacy groups also had issues with the bill, including Loud Light, the American Civil Liberties Union of Kansas and the Kansas League of Women Voters.

In written testimony opposing the bill, Kansas ACLU policy director Aileen Berquist said runoff elections discouraged voter engagement and were based on discriminatory practices that began in the Jim Crow era to disenfranchise Black voters.

“At a time when the integrity of our elections is under attack and legislation making voting more difficult and confusing for citizens continues to be introduced in this building, we encourage the Legislature to introduce bills that encourage citizen participation rather than attempting to impose vestiges of the Jim Crow south on modern-day Kansans,” Berquist said.