Wichitopekington

Kris Kobach testifies at hearing on judicial selection.

A day after Gov. Sam Brownback called on the Legislature to change the way Kansas selects Supreme Court and appellate judges, the president of the state’s association of lawyers offered to give up its majority on the state Judicial Nominating Commission.

The president of the Kansas Bar Association, Lee Smithyman of Overland Park, told legislators if they think lawyers have too much influence on picking judges, they should keep the system and reduce the number of lawyers in it.

“The Kansas Bar Association is very comfortable with a minority of attorneys on the (nominating) panel,” Smithyman said.

Both the House and Senate judiciary committees held hearings Wednesday on whether to change the selection process to direct election, where voters choose the top judges; or the “federal model” in which the governor appoints judges with the consent of the Senate.

In the current system, a nine-member commission — five lawyers elected by the Bar and four non-lawyers appointed by the governor — reviews applications and nominates three candidates. The governor must make a final selection from among the three nominees.

He proposed what the Bar Association calls the four-five-six plan, in which the Bar would select four members, the governor five, including a nonvoting chairman, and House and Senate leaders would choose six members.

“We lawyers think the present system is excellent,” he added. “We think we need to retain all the virtues that the merit system has given us.”

Brownback criticized the system in his State of the State speech Tuesday night, saying it “fails the democratic test,” and asked lawmakers to change it. He said he’d be fine with either direct election or the federal model.

Smithyman was the only proponent of the current system to testify to the House Judiciary Committee on a day set aside mostly for its opponents, including Secretary of State Kris Kobach. Kobach said he was testifying not in his official capacity, but as a lawyer and former law professor.

He said not only is the current system undemocratic, it doesn’t even pick the best judges.

“I would submit to you that if you look at the quality of the Kansas judiciary, Court of Appeals and Supreme Court, and compare it to similarly sized states like Maine, that has the federal model, just look at the resumes, look at the qualifications, I would say most people would say Kansas probably does not do as well,” Kobach said.

Kobach said the same holds true of Kansas’ federal judges, who were drawn from the same talent pool as the state judges but underwent a “crucible of scrutiny” under the federal model before receiving a presidential appointment. “I think most people would agree that the federal list (of judges) is more impressive,” Kobach said.

University of Kansas law professor Stephen Ware told the committee that he sees three major flaws in the current system.

“The current system is undemocratic, the second problem is it is extreme and the third problem is it’s secretive,” Ware said. “You don’t need to trade off judicial quality against democratic legitimacy.”

Sedgwick County District Judge Eric Yost acknowledged to the lawmakers that elections are “a lot of work, a lot of time, a lot of money.”

However, he added “The thing is democracy is a messy thing… but these appellate judges have enormous power over all of us.”

Judge Anthony Powell, recently elevated from the Sedgwick County district bench to the Court of Appeals, said it was “somewhat of an uncomfortable position” to testify in favor of changing the selection process, because his new colleagues generally favor the current system.

But, he said the question is simple: “Do free people have the right of self-government or not.”

TOPEKA – Record sales of lottery tickets led to a record profit for state government last year, the director of the Kansas Lottery told lawmakers Tuesday.

“As a result of the record sales year, the lottery was able to transfer to the state’s financial coffers approximately $72 million, a record amount,” acting Lottery Director Dennis Taylor said in a report to the Senate Federal and State Affairs Committee.

In addition, lottery winners paid about $9 million in income taxes on their winnings, for a total profit to the state of about $81 million.

The amounts Taylor reported are for traditional lottery sales only, and do not include income from the casino operations that the lottery technically owns and operates.

By law, most lottery income goes to fund economic development projects, with smaller amounts earmarked for the state general fund and prison construction and maintenance. A tiny fraction goes to a fund to fight gambling addiction.

Bigger jackpots in the Powerball and Mega Millions games fueled lottery sales in the 2012 fiscal year, Taylor said.

That included a world record jackpot of $656 million that was shared by three winners – including one in Kansas — in the multi-state Mega Millions game.

Lottery ticket sales in fiscal 2012 totaled slightly more than $246 million. The state paid out $139 million in prizes and about $14.4 million in commissions to retailers.

Taylor reported to the committee on his third day on the job, after moving to the lottery department from the state Department of Administration.

The lottery also worked last year to improve security, including implementing a process called “keyless validation,” Taylor said.

That allows players to validate their own tickets by running them under a bar-code reader before they turn them in for payment.

That guards against the possibility that unscrupulous clerks who work for lottery retailers could tell customers they had lost, and then pocket the winnings themselves.

In addition, the lottery is using undercover investigators to root out another way of cheating at the sales counter called “micro-scratching,” Taylor said.

“Micro-scratching is the term used when a clerk removes a tiny amount of latex from the play area of a scratch ticket in an effort to determine if the ticket has a prize,” Taylor said in his report. “If the ticket has a prize, the clerk purchases and cashes the ticket. If there is no prize, the ticket is sold to an unsuspecting customer.”

The state’s voter identification law came under fire Tuesday night at a legislative forum where ordinary citizens got a chance to tell lawmakers what they want from the session that begins next week.

The open-mike session drew a crowd of about 100, about 40 of whom chose to speak on a variety of issues ranging from abortion to fluoridated water to police brutality.

But the 25 lawmakers who attended the forum heard the most about dissatisfaction with the voting law they passed in 2011 at the request of Secretary of State Kris Kobach.

Kobach contends that photo ID and proof of citizenship are necessary to prevent voter fraud by immigrants legal and illegal.

But resident Bryan Mann told the lawmakers that the real purpose of the voter ID law is to suppress Democratic-leaning voter groups – especially minorities and the elderly – to cement Republican domination of state government.

He drew loud cheers after he called the law “nothing more than partisan gamesmanship and a watered down Jim Crow law,” referring to the pre-civil-rights statutes used in southern states to deny voting privileges to black people.

In last year’s elections, for the first time, all Kansas voters were required to show photo ID when they voted at the polls.

This year, a new provision takes effect requiring that new voting registrants provide proof of citizenship such as a birth certificate or passport.

Opponents say that part of the law causes confusion for voters and essentially makes it impossible for groups to hold voter registration drives.

“Would you turn your personal information, such as your Social Security number or a copy of your birth certificate, over to a complete stranger?” said Esau Freeman. “This is what Kris Kobach has tricked you into passing. It’s a law that won’t allow the Republican Party or the Democratic Party or anybody to go and register first-time voters without being able to put that documentation up front.”

Kobach has previously recommended that groups that want to register voters could help fill out the registration forms and let the prospective voters send them in themselves after they gather the needed documents.

Lawmakers did not speak to issues raised by the public during the meeting. But later, several acknowledged the pushback against the voter ID law and said it may need a second look when they get to Topeka.

“I think a lot of people have serious concerns about making it harder to vote,” said Rep. Jim Ward, D-Wichita, who opposed the law when it passed. “Whether our extremely conservative friends will hear that is the question.”

Two local Wichita Republican representatives who voted for the law, Les Osterman and Dennis Hedke, said they think some amendments might be in order if people really are finding it very difficult to obtain the documents they need to register to vote.

“I will be looking at it to see what effect it will have on the citizens,” Osterman said.

While he paid $14 and it took two weeks to acquire his birth certificate from Wyoming, Osterman said other people might have bigger problems getting the documents from other states.

“I’m listening to what they (the law’s opponents) have to say and taking into consideration what they have to say,” he said.

Hedke added that “with all the comments, we need to study it more carefully. There may be some justification for amendments to the law.”

However, he said he won’t advocate to change it unless someone supplies hard evidence that it’s putting an unreasonable burden on voters.

“I think suggesting we’re causing many, many people not to have the ability to vote is an incorrect assessment of the law,” he said.

Kobach

Secretary of State Kris Kobach said Friday his office has completed its investigation and found that understaffing and undertraining were the primary causes of vote-counting problems in the November election in Sedgwick County.

Kobach said he will recommend that county commissioners increase the number of employees at the election office, which is significantly understaffed compared to the offices in Johnson, Wyandotte and Shawnee counties.

Johnson County has the largest election staff with 15 full-time employees and four part-time.

Sedgwick County has three full-time and six part-time, the report said.

In addition to more staffing, Kobach’s task force recommended that all the employees who work in the vote-counting operation go through an intensive training program on how to use their software.

Kobach said Election Commissioner Tabitha Lehman will probably need to go to the County Commission for more money for staffing.

Lehman could not be reached for comment late Friday and her e mail indicated she will be out of the office until after Christmas.

County Commission Chairman Tim Norton said the county has always been amenable to funding requests from Lehman and her predecessors, Bill Gale and Marilyn Chapman.

“I don’t know that we’ve ever stonewalled them on what they need or their staffing,” Norton said. He said different types of elections require different numbers of workers and the county sends some of its staff to help out on and around election days.

“We try to be good partners,” he said.

The secretary of state’s investigation was called to figure out why Nov. 6 election-night results were delayed for hours and why early returns from advance and absentee ballots were initially reported as the full and final count.

Kobach said the vote-counting software operated the way it was supposed to, but workers in the office failed to mark an on-screen box that would have properly reported the number of precincts that had been counted.

Because of the error, the software read the advance votes, which come from nearly all precincts, as being 100 percent of precincts reporting.

He said his investigators didn’t find any problems with the final count, so while results were delayed and the wrong number of precincts was initially reported, “never were the vote totals inaccurate.”

Kobach’s task force noted that the same problem with vote tallies had occurred in the Aug. 6 primary and said “sufficient steps were not taken after the primary election to identify the cause of the problem in order to prevent the recurrence of the error in the general election.

In addition to increased staffing and training, the task force also recommended:

– assigning office workers specific responsibilities and giving them time to perform the work, rather than dividing their efforts between multiple duties and responsibilities.

– contracting for on-site support from its software vendor on the days before, during and after election days.

– increasing pre-election voting test runs beyond the single public demonstration required by state law.

– planning to count advance votes before the polls close on election day, to speed reporting and free time for regular updates.

– Lehman should obtain training on press and public relations.

– increasing the number of polling places. The task force noted that the county has fewer than one-third the number of polling places as 10 years ago following reductions put in place by Lehman’s predecessor, Bill Gale.

While the task force acknowledged the reduction was “reasonable in light of tight budgets and an aggressive and successful advance-voting program,” it said polling sites “may have been reduced too far.”

That, the task force said, “can contribute to longer voting lines, greater travel distances and possible delays in the delivery of results to the election office.”

The four-member task force consisted of Assistant Secretary of State Brad Bryant, Assistant Attorney General Eric Rucker, Assistant State Elections Director Bryan Caskey and Ryan Kriegshauser, deputy assistant secretary of state for legal counsel and policy.