Kansas Secretary of State Kris Kobach agreed to surrender the duties of his office Friday in answer to a salty letter from Gov. Jeff Colyer, and he chided the governor for making up an ethics rule, falsifying claims and undermining public trust in the elections process.
After Kobach's office updated unofficial results from advance ballots that trickled through the mail, the two remained 110 votes apart in their bid for the GOP nomination for governor, with Kobach leading.
Kobach said he would install his top assistant, Eric Rucker, to oversee the remainder of the primary election. The governor accused Kobach of giving bad advice to counties that could suppress the vote and questioned how 8,999 provisional ballots would be handled when local canvassing boards meet next week.
Colyer hired legal counsel and promised to have a representative present in each of the 105 counties when they certify results next week to ensure Kansans are treated fairly.
"As governor of Kansas, your unrestrained rhetoric has the potential to undermine the public's confidence in the election process," Kobach said. "May I suggest that you trust the people of Kansas have made the right decision at the polls and that our election officials will properly determine the result as they do in every election."
On Friday evening, Attorney General Derek Schmidt said he had instructed election and legal officials in all 105 counties to preserve all records related to the primary election. In a "litigation hold" letter, Schmidt noted that litigation related to the close gubernatorial primary appeared likely.
"Because of the obvious statewide importance of any potential litigation related to this election, I felt it prudent to provide this clear guidance in a manner that is uniform statewide so there can be no confusion or misunderstanding," Schmidt said in a statement.
In an interview Friday morning on Fox News, Colyer said it wasn't enough for Kobach to recuse himself from a recount because Kobach's office wrongly instructed counties not to consider any advance ballots that haven't yet arrived. Kansas law allows those ballots to be counted as long as they were postmarked no later than Tuesday and arrive by Friday.
"This is not going to be a difficult thing," Colyer said. "We just need to keep our chin up, follow the rules, and I believe we're going to have a victory."
Kobach's response disputed the allegation and said Colyer's complaints were "beneath the office of the governor."
He also took issue with Colyer's reference to a rule that prohibits attorneys from giving advice in matters of self interest. The suggestion of impropriety "is particularly puzzling," Kobach said.
"You appear to believe that an attorney cannot serve in any role concerning an election in which he is a candidate," Kobach said. "Your imagined rule would effectively mean that an attorney could never be secretary of state and run for re-election or for another office."
Colyer asked that Schmidt preside over the election process in Kobach's stead. Kobach declined the offer to "arbitrarily assign my responsibilities to another office that is not granted such authority."
Rucker previously worked for Attorney General Phill Kline. In 2010, Rucker was censured for his role in misleading the Kansas Supreme Court in an inquiry involving an abortion doctor. Kobach defended Rucker in a 2015 dispute in which a disgruntled former employee claimed she was dismissed because she didn't go to church.
Kendall Marr, a spokesman for the governor, said he wasn't comfortable putting the election in the hands of an at-will employee who could be fired by Kobach at any time.
"We hope he will reconsider our request to allow the attorney general to provide proper legal advice to county elected officials to reassure Kansans that the election between Secretary Kobach and Gov. Colyer is free from conflicts of interest," Marr said.
Kobach said Rucker also would take his place on the state canvassing board that will certify election results. The other two members are Colyer and Schmidt. Lt. Gov. Tracey Mann is a member of the objections board that would handle any complaints.
"I will not take the step of publicly asking you to step down from these positions," Kobach said. "However, should you decide to follow my lead and address any appearance of a conflict of interest by removing yourselves from these boards, please let my office know immediately."