Kansas Attorney General Opinion 2012-031

December 11, 2012
ATTORNEY GENERAL OPINION NO. 2012-31
Ryan Kriegshauser
Office of Legal Counsel and Policy
Office of the Secretary of State
Memorial Hall
120 S.W. 10th Avenue
Topeka, KS 66612-1594
Re: 	Elections—County 	Boards 	of 	Canvassers—Enumeration 	of 	Elections 	to 	be
Canvassed by County Boards; Procedure for Canvass by County Boards
Synopsis: 	County boards of canvassers are charged by statute to conduct the intermediate
canvass in national and state primary elections and such canvass requires
examining and counting the returns of votes cast to determine authenticity and to
finalize the preliminary abstract of election returns. 	Such canvass does not
include the express or implied authority to order a “re-vote.” Cited herein: K.S.A.
2011 Supp. 25-3002; K.S.A 25-3101; K.S.A. 2011 Supp. 25-3107.
* 	* 	*
Dear Mr. Kriegshauser:
On behalf of Kansas Secretary of State Kris Kobach, you request our opinion regarding whether
county boards of canvassers have the authority to order what you refer to as a “re-vote.” 	You
state that a “re-vote” was conducted in Shawnee County on August 28, 2012 for the Republican
primary of the 52nd District of the Kansas House of Representatives. You further state the “re-
vote” was ordered by the Shawnee County Board of Canvassers because ballots were cast in
the wrong precinct due to poll-worker error and such affected voters could not be identified. 1
Your question requires an analysis of the powers and duties of the county boards of
canvassers. County boards of canvassers are creatures of statute and only have those powers
1 It is important to note that your question is not whether the provisional ballot cast in the wrong precinct
because of poll-worker error could be counted. K.S.A. 2011 Supp. 25-3002(b)(3) requires canvassers to
count votes for those offices or issues which are identical in both precincts. The canvassers shall not
count the votes for those offices or issues which differ from the offices or issues appearing on the ballot
used in the precinct in which the voter resides.

Ryan Kriegshauser
Page 2
expressly conferred by the Kansas Legislature or necessarily implied. As a creature of statute,
any reasonable doubt as to the existence of power should be resolved against its existence.2
The powers of the county boards of canvassers are found in K.S.A. 25-3101 et seq. The board
of county commissioners in each county shall serve as the county board of canvassers for
elections occurring within the county. 3 County boards of canvassers conduct the final canvass
in local elections and the intermediate canvass in national and state elections.4 The procedure
for canvass is found in K.S.A. 2011 Supp. 25-3107(a). It provides:
At the time of commencement of any canvass by the county board of canvassers
the county election officer shall present to the county board of canvassers the
preliminary abstracts of election returns, together with the ballots and records
returned by the election boards. The county board of canvassers shall inspect
and check the records presented by the county election officer and shall hear any
questions which the county election officer believes appropriate for determination
of the board. The county board of canvassers shall do what is necessary to
obtain an accurate and just canvass of the election and shall finalize the
preliminary abstract of election returns by making any needed changes, and
certifying its authenticity and accuracy. The certification of the county board of
canvassers shall be attested by the county election officer. Neither the county
board of canvassers nor the county election officer shall open or unseal sacks or
envelopes of ballots, except as is required by K.S.A. 25-409, 25-1136 and 25-
1337, and amendments thereto, or other specific provision of law or as is
authorized to carry out a recount under subsection (b). 5
There is no explicit language in the statutes that we have found that provides the county board
of canvassers with the authority to order a “re-vote.” The language the Shawnee County Board
of Canvassers purportedly relied on is in the italicized language above. The authorization in the
statute to “do what is necessary” is limited to obtaining an accurate and just canvass of the
election. Although not defined by Kansas statute, canvass is defined in Black’s Law Dictionary
to mean to examine in detail, scrutinize, or to formally count ballots and report the returns.6 The
definition of canvass from Black’s Law Dictionary is consistent with the process the county
boards of canvassers must follow pursuant to K.S.A. 2011 Supp. 25-3107(a). Put simply, the
duty to canvass requires the county board of canvassers to determine that the returns are
genuine and to count the votes as they find them. 7
Furthermore, the duty of county boards of canvassers has been found to be ministerial only and
its sole function is to meet, canvass the vote, and declare the results.8 A ministerial act is one
which a public officer or agent is required to perform upon a given state of facts, in a prescribed
2Hobart v. U.S.D. No. 309, 230 Kan. 375, 383 (1981)(citing State ex rel. McAnarney v. Rural High School
District No. 7, 171 Kan. 437, Syl. ¶ 1 (1951)).
3 K.S.A. 25-3101.
4 Id.
5 K.S.A. 2011 Supp. 25-3107(a) (emphasis added).
6 Black’s Law Dictionary (9 th ed. 2009).
7 Although not an issue in your request, we point out that canvass also may include a recount of the
ballots pursuant to K.S.A. 2011 Supp. 25-3107(b).
8 Wycoff v. Board of County Com’rs, 191 Kan. 658, 663 (1963). See also, Coleman v. Ritchie, 762
N.W.2d 218 (Minn. 2009).

Ryan Kriegshauser
Page 3
manner, in obedience to the mandate of legal authority and without regard to his own judgment
or opinion concerning the propriety or impropriety of the act to be performed.9
In Lewis v. Marshall County Commissioners,10 the Kansas Supreme Court held,
It is a common error for a canvassing board to overestimate its powers.
Whenever it is suggested that illegal votes have been received, or that there
were other fraudulent conduct and practices at the election, it is apt to imagine
that it is its duty to inquire into these alleged frauds, and decide upon the legality
of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take
the returns as made to them from the different voting precincts, add them up, and
declare the result. Questions of illegal voting and fraudulent practices are to be
passed upon by another tribunal.11
Your question does not allege fraud or illegal practice, but instead alleges poll-worker error. We
see no reason to treat this irregularity differently than fraud or illegal practice because the
county boards of canvassers’ responsibility is to canvass the ballot and not to determine all
contests or objections. 	We conclude that a county board of canvassers has no express or
implied authority to order a “re-vote.” To conclude otherwise would be to transform such
canvassing board into a tribunal, not only to canvass such returns, but also to determine all
contests and objections arising from the canvass. 12
In summary, county boards of canvassers are charged by statute to conduct the intermediate
canvass in national and state primary elections and such canvass requires examining and
counting the returns of votes cast to determine authenticity and to finalize the preliminary
abstract of election returns. Such canvass does not include the authority to order a “re-vote” but
to count the votes as they found them.
Sincerely,
Derek Schmidt
Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
9 State ex rel. Stephan v. O'Keefe, 235 Kan. 1022, 1025 (1984).
10 16 Kan. 102 (1876).
11 Id at 108.
12 See generally, Brown v. Rush County Com'rs, 38 Kan. 436, 438 (1888).