If someone requests a hand recount of paper ballots in a Kansas election, can the county substitute scanned ballot images instead?

Plain-English summary

A state representative asked whether, when a candidate or voter requests a recount of an election, they are entitled to insist on a hand count of the actual original paper ballots, or whether the county can instead recount using digital or photographic images of those ballots produced by scanning equipment.

The Attorney General found the statutes clear on this point. K.S.A. 25-2912(a)(3) states that each paper ballot "shall be counted by hand" in any recount, unless the person who requested the recount chooses not to have a hand count. And separately, K.S.A. 25-3107 says that in counties using optical scanning or electronic voting systems, the recount method is "at the discretion of the person requesting the recount," not the county. Reading those two provisions together, the opinion concluded that "each paper ballot" plainly means the physical, original paper ballot itself, not a scanned image of it, and that a county cannot substitute ballot images for actual ballots when the recount requestor has specifically asked for a hand count. The only way ballot images could be used instead is if the requestor themselves chooses that substitute method in a county with the relevant scanning or electronic equipment.

What this means for you

County election officers and boards of canvassers conducting a recount: the opinion holds you must perform a genuine hand count of the original paper ballots when the recount requestor asks for one; you cannot substitute scanned or photographed ballot images on your own initiative.

Candidates and registered electors requesting a recount: the opinion confirms the choice of method, hand count of paper ballots versus using ballot images, belongs to you as the requestor in counties with optical scanning or electronic voting equipment, and the county must honor whichever method you choose.

State legislators and election policy staff: the opinion is a useful reference point for how Kansas's recount statutes interact, especially given the 2023 amendment extending recount rights to constitutional amendment elections spanning multiple counties.

Common questions

Does "counted by hand" in Kansas election law include reviewing a scanned image of a ballot on a screen?
No, according to the opinion; "each paper ballot" in K.S.A. 25-2912(a)(3) plainly refers to the original physical ballot, not a digital or photographic reproduction of it.

Who decides whether a recount uses paper ballots or ballot images in counties with scanning equipment?
The person who requested the recount, according to K.S.A. 25-3107(b) and (c)(2), which the opinion reads as giving that choice to the requestor, not the county board of canvassers.

Does this rule apply to recounts of constitutional amendment elections spanning multiple counties?
Yes; the opinion notes the Legislature amended K.S.A. 25-3107 in 2023 to extend recount procedures to elections on constitutional amendments, and the same hand-count default and requestor's-choice rule applies there too.

Background and statutory framework

K.S.A. 25-3107(b) governs recounts of single-county elections, letting a candidate or a registered elector who cast a ballot on a submitted question request a recount in all or specified voting areas; in counties using optical scanning or electronic/electromechanical voting systems, the statute gives the requestor discretion over the recount method. K.S.A. 25-3107(c)(2), extended in 2023 to cover constitutional amendment elections, applies the same rule to elections spanning more than one county. K.S.A. 25-2912(a)(3) sets the default rule across all recounts: each paper ballot must be counted by hand unless the requestor elects not to have a hand count.

The opinion applied straightforward plain-text statutory interpretation, noting Kansas courts do not speculate about legislative intent when text is unambiguous, and concluded the interplay of these statutes means a hand-count request must be honored with the actual paper ballots, with ballot-image substitution available only as an alternative the requestor may themselves choose in counties equipped with the relevant scanning or electronic technology.

Citations and references

Statutes:
- K.S.A. 25-2912(a)(3)
- K.S.A. 25-3107 (incl. (b), (c)(2))

Cases:
- In re River Rock Energy Co., 313 Kan. 936, 492 P.3d 1157 (2021)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10504/638460984372330000

Original opinion text

September 27, 2023

ATTORNEY GENERAL OPINION NO. 2023- 9

The Honorable Francis Awerkamp
State Representative, 61st District
State Capitol, Room 187-N
Topeka, KS 66612

Re: Elections—County Boards of Canvassers—Recount; When; Recount
Procedure

Synopsis: If an election recount requestor asks for a hand count of the original
paper ballots, the recount must be conducted in that manner and not
by using ballot images instead. Cited herein: K.S.A. 25-2912; 25-3107.

                        *             *            *

Dear Representative Awerkamp:

As a member of the Kansas House of Representatives, you ask whether, in election
and ballot issue recounts, the person requesting a recount is entitled to demand a
hand recount of the original paper ballots or whether the county may substitute
digital or photographic images of the ballots.

K.S.A. 25-3107(b) authorizes recounts of elections occurring within a single county:

  [I]f any candidate shall request the recount of the ballots cast in all or
  in only specified voting areas for the office for which the person is a
  candidate, or if any registered elector who cast a ballot in a question
  submitted election requests a recount in all or only specified voting areas
  to determine the result of the election, the county board of canvassers
  shall cause a special election board appointed by the county election
  officer to meet under the supervision of the county election officer and
  recount the ballots with respect to any office or question submitted
  specified by the county board of canvassers or requested by the
  candidate or elector.

The statute goes on to provide that "[i]f a recount is required in a county that uses
optical scanning systems . . . or electronic or electromechanical voting systems . . .
the method of conducting the recount shall be at the discretion of the person
requesting the recount."1

K.S.A. 25-3107(c)(2) applies to elections occurring in more than one county and
entitles candidates or registered electors who cast a ballot in an election for a
constitutional amendment to request a recount.2 Like K.S.A. 25-3107(b), it also
provides that "[i]f a recount is required in a county that uses optical scanning
equipment . . . or electronic or electromechanical voting systems . . . the method of
conducting the recount shall be at the discretion of the person requesting the
recount."3

We also note K.S.A. 25-2912(a)(3) specifies that "[e]ach paper ballot shall be counted
by hand in any recount conducted with respect to any election, unless the requestor
of a recount pursuant to K.S.A. 25-3107, and amendments thereto, elects not to
have the ballots counted by hand."

Statutory interpretation begins with plain language of the statute, giving common
words their ordinary meaning.4 If that text is plain and unambiguous, courts "do
not speculate about the legislative intent behind that clear text."5 Here, we find the
plain language of these statutes to be clear.

The default recount method is a hand count of paper ballots. The text of the statute
is unambiguous. "Each paper ballot shall be counted by hand"6 plainly refers to the
original paper ballot itself, not to a digital or photographic image of the ballot. And
if a recount requestor asks for a hand count of the original paper ballots, the
recount must be conducted in that manner, without the substitution of ballot

1 K.S.A. 25-3107(b).
2 Before July 1, 2023, the text of the statute did not cover recounts of elections on constitutional

amendments. It was amended during the 2023 legislative session to include those elections. See L.
2023, ch. 79, § 50.
3 K.S.A. 25-3107(c)(2).
4 See, e.g., In re River Rock Energy Co., 313 Kan. 936, 944, 492 P.3d 1157 (2021).
5 Id.
6 K.S.A. 25-2912(a)(3).

images. Again, the statutory text is clear. The method of recounting is "at the
discretion of the person requesting the recount."7

In summary, a county conducting a recount may not substitute ballot images for the
original paper ballots, unless the person requesting the recount specifically requests
such substitution in a county that uses optical scanning equipment or electronic or
electromechanical voting systems.

                                   Sincerely,


                                   /s/ Kris W. Kobach

                                   Kris W. Kobach
                                   Kansas Attorney General

                                   /s/ Dwight R. Carswell

                                   Dwight R. Carswell
                                   Deputy Solicitor General

7 K.S.A. 25-3107(b), (c)(2).