Outgoing 111th District Rep. Eber Phelps still has questions about the Nov. 6 general election in which he lost his seat in the Kansas House of Representatives by a scant 35 votes to Ellis County Commissioner Barb Wasinger.

The Nov. 20 recount that confirmed he lost has not alleviated his concerns about the county’s 12-year-old voting machines, he said. County Clerk Donna Maskus, the county’s chief election officer, has herself remarked on the age of the machines at County Commission meetings, he pointed out in an interview Wednesday. 

“I would like to see a recount of the electronic ballots,” Phelps said. “I’d like to see a test of the accuracy of the machines, and a recount of the larger precincts.” 

Hays attorney John Bird, who Nov. 15 requested the hand recount on behalf of Phelps previously has said the Democrats are not done with the election.

Bird could not be reached for comment Wednesday, but has said previously he wants to consult with an election expert on the shortcomings of the recount process that he believes violated Kansas election statutes.

Bird argued Nov. 20 that the county’s 69 voting machines are not certified for use in any other state and were not properly calibrated prior to the election. He indicated the Democrats will seek expert guidance on what to discern from audit logs of the county’s voting machine activity.

Maskus has defended the election and recount process.

Bird also disputed the validity of the recount on the basis of there being no print-out of the electronic ballots, which he said are required when a candidate asks for a hand recount. Instead the recount was based on data reports from each machine, by ward and precinct.

Phelps agrees.

“This has nothing to do with winning or losing. I want to make sure we had a legitimate election,” Phelps said. “When you ask for a recount, I’m talking about all the ballots. That was requested by formal letter. I had assumed they would count all the ballots.”

And so does Ellis County Democratic Party Chairman Henry Schwaller IV, vice mayor and a Hays City commissioner, who observed the day-long recount.

“I do know that what we saw last Tuesday was not a recount,” Schwaller said. “We weren’t looking at any ballots. To do it properly the county clerk would have had to do it differently. They just didn’t do it correctly.” 

Maskus has said the recount is the first the county has had in her nearly 40 years in the clerk’s office.

The lack of a recent precedent has led to questions about the actual procedure. Even the question of who will pay the cost of the recount hasn’t been determined yet, Maskus said Wednesday. 

“It hasn’t all been sorted out,” she said. Even so, at the time he requested the recount, Bird was required by law to set a bond of $399, which he paid, she said.

Maskus plans to review the Kansas statute covering election recounts to determine who should pay.

The question of who pays might hinge on the fact the actual vote tally changed, but the results did not, because Wasinger is still the winner. Upon recount, Wasinger won by 35 votes, with 4,341 for her and 4,306 for Phelps. The Nov. 15 canvass had her winning by 32.

When the votes were canvassed after the recount on Nov. 20, even one of the members of the Board of Canvassers expressed a lack of confidence in the electronic voting machines.

In a 2-to-1 vote by the Board of Canvassers, Ellis County Sheriff Ed Harbin, who said he prefers paper ballots, declined to certify the election recount results.

Maskus said earlier this week that new voting machines are a priority for her office to replace the old ones.

But Bird has argued for using paper ballots, saying that counties like Ellis County don’t have a sufficient volume of votes to merit using the machines. Bird has said he votes with a paper ballot.

And so does Phelps.

“I’m just very skeptical of the electronic voting machines,” he said.