Sheriff Ken McGovern in the last two elections helped his elderly mother obtain a ballot to vote in Douglas County, despite evidence that his mother lives in a Johnson County nursing home.

A spokesman with the Kansas Secretary of State’s office confirmed that the matter had been forwarded to state prosecutors for review and possible charges.

When questioned by the Journal-World, McGovern confirmed that during the 2016 primary election in August he picked up an advance ballot at the county courthouse for his mother, Lois McGovern. Sheriff McGovern signed a document listing that his mother was registered to vote at 2803 Schwarz Road in Lawrence. County records, however, show that Lois McGovern sold that home more than a year before the primary election. Sheriff McGovern confirmed to the Journal-World that his mother was not living at the house during the primary election.

In the November general election, McGovern again went to pick up an advance ballot for his mother. But this time he faced pushback from a county employee who had knowledge that McGovern’s mother did not live at the Schwarz Road address, a source with knowledge of the incident told the Journal-World. But Sheriff McGovern eventually was allowed to take a ballot to his mother, after her address was changed to that of Sheriff McGovern’s west Lawrence home. McGovern, though, confirmed to the Journal-World that his mother does not live with him.

Sheriff McGovern declined to say where his mother lived, and he refused to confirm that she lives in Douglas County.

“Where she is living doesn’t make a difference,” McGovern said.

The Journal-World interviewed multiple sources who had knowledge of Lois McGovern living in a Johnson County nursing home. When the Journal-World called the nursing home and gave an employee Lois McGovern’s name and room number and asked to be transferred, the employee confirmed that McGovern lived in the facility but was unable to transfer the call. The Journal-World reached out to Lois McGovern for comment through Sheriff McGovern, and she declined to comment for this article.

While the Johnson County address has created questions about Lois McGovern’s ability to vote in a Douglas County election, it is not clear that either the sheriff or his mother violated Kansas voting law, said Bryan Caskey, director of elections for the Kansas secretary of state’s office.

However, the McGovern incident did cause a county resident who was aware of the situation to file two complaints with the secretary of state’s office. Caskey said there were enough questions surrounding the McGovern incident — especially her vote in the primary election — that he had forwarded the complaints to the Kansas secretary of state’s prosecution division for review and possible charges.

Caskey, though, stopped short of saying he thought a violation of the law had occurred. Instead, he said Kansas law is vague on the matter.

In the land of Secretary of State Kris Kobach — one of the nation’s most ardent supporters of voter ID and proof of citizenship laws — it may be surprising that laws are vague on whether you have to live in the county you vote in.

But people who have studied Kansas voter law aren’t surprised. They know of a longtime quirk in Kansas voting law — if you once lived in a Kansas community, there are relatively easy ways to continue voting in the community, even if you haven’t lived there for decades.

“Under the law, you can be absent for 20 or 30 years and still vote,” Caskey said.

Intent to return

Maybe your brother is running for city council in your old hometown that you no longer live in. Kansas law may provide a way to vote for him anyway. The key, election experts say, is that you need to be prepared to utter the phrase “I intend to return.” In other words, even though you don’t live in your old hometown, you need to be able to say that you once did, and you plan to return there someday.

In that situation — as long as the secretary of state doesn’t have evidence that you also are voting in another location — you likely could figure out a way to vote in your old hometown.

How? Kansas voting law has a broad definition of what constitutes residency. In particular, the Kansas law has a phrase that says residence means a place “to which, whenever such person is absent, such person has the intention of returning.”

The law provides no further guidance on what that means. The secretary of state’s Kansas Election Standards book does provide guidance. It notes that residency is not affected by vehicle registration, tax payments, utility hook-ups or the Census Bureau standard of where someone usually sleeps. Instead, the secretary of state’s office said the key piece of advice is this: “The registrant is allowed by law to determine his/her place of residence according to their intent, and it is difficult for another person to disprove it.”

Sherrie L. Riebel, county clerk for Allen County in southeastern Kansas, said “difficult” is the key word. Riebel is active in the Kansas Association of County Clerks, serving as the chair of the committee that watches legislative action on election law. She said the vagueness of the Kansas law is noticed by county clerks across the state.

Riebel said there is not widespread misuse of the “intent to return” clause, but she guessed that every county clerk in the state has probably questioned whether someone is misusing it at one point or another. Riebel said there are situations where the intent to return clause does help resolve what otherwise would be difficult situations. Among them: A retiree who spends part of the year in Kansas and part in Texas; a college student who spends summers in her hometown but the school year in Lawrence; people who are stationed overseas for military or work purposes; and other scenarios.

Some scenarios, however, create questions.

“It is the ones who don’t ever return. It is the ones who have been gone for 20 years but they still stay registered here that really bother me,” Riebel said. “You’ve been gone for 20 years. I’d think you would figure out you’re not going to return.”

What does Riebel do in those situations? She said there’s not much she can do, as long as the voter professes an intention to return.

“We’re not the election police,” she said. “And I don’t have a lie detector test to put them through.”

A ‘cop-out’

On its face, it would seem that registering to vote by using an address of a home that you no longer own and no longer have any legal right to live in would be against the law. Caskey, the secretary of state official, said it does seem to defy common sense.

“Clearly you need to have some ability to return to the location,” Caskey said. “I don’t have a legal right to live at your house, but the law doesn’t spell that out.”

So, is it illegal to register to vote using an address you have no legal right to occupy?

“It is a good question, and one I don’t really have a good answer to,” Caskey said.

Some election experts, though, said they are puzzled by Caskey’s response. Rep. Vic Miller, the ranking Democrat on the House Elections Committee, said the allegations against Lois McGovern are a clear-cut violation of voting law.

“That is a cop-out,” Miller, of Topeka, said of Caskey’s response. “I agree that the law is fairly loose. The facts as you presented them to me, they are unambiguous. You can’t just say ‘I intend to return’; otherwise there would be no threshold whatsoever. I don’t believe any judge would rule that is a bona fide residence.”

Rep. Keith Esau, R-Olathe, is the chair of the House Elections Committee. He said there are good reasons for the state law to be written with an “intent to return clause,” citing missionaries and others who may sell their homes to serve overseas for some period of time. But he did say it seemed curious that McGovern wouldn’t use the nursing home as her address.

“That may be stretching it,” Esau said of the McGovern incident, “because you are in the same state, so why don’t you just use that as your residence? That is what most people do.”

Both men said Lois McGovern being registered at her son’s home is more likely to be viewed as legal under the law since she has the ability to actually live at that residence at some point in the future.

Sheriff’s defense

Sheriff McGovern, a Republican who was re-elected in 2016, said he and his mother had no intention of wrongdoing when she registered to vote at an address that she no longer lived at.

When asked why he thought it would be legal for his mother to continue being registered at a house she no longer owned or occupied, McGovern initially responded by saying he discussed the matter with Douglas County Clerk Jamie Shew and was assured that it was OK.

But that explanation left questions about why Lois McGovern’s address was changed to the sheriff’s house just days prior to the November general election — despite the fact that Lois McGovern didn’t live at that address either.

When asked to explain, McGovern said that may have been the point that he received guidance from Shew. He said he may not have received any advice from Shew prior to the primary election. He said he didn’t remember whether he talked to Shew about the primary election issue.

Shew said he is certain that he never gave McGovern any advice that it would be permissible for his mother to remain registered at the Schwarz Road house that she had sold. Shew said that Sheriff McGovern asked about the issue just prior to picking up a ballot for his mother for the general election. Shew said he’s not sure what caused the sheriff to raise the question.

A source with knowledge of County Courthouse workings told the Journal-World that McGovern asked about the issue after a county employee confronted him when he tried to pick up a ballot for the general election. The county employee questioned whether Lois McGovern still lived in the county, said the source, who asked to remain anonymous because the source was not authorized to speak publicly about the matter.

McGovern said he doesn’t recall that confrontation, but also said he could not recall what led him to change his mother’s address to his home.

McGovern said he is now confident that his mother is complying with the law. He said that although his mother doesn’t live with him currently, the intention is for his mother to leave the nursing home and move into his home at some point in the future.

McGovern said he also wasn’t trying to evade voter law in anything that he did.

“My mom wanted to vote, and I tried to help her vote,” he said.

McGovern became involved in the issue because he was allowed to pick up a ballot for his mother under a clause that allows a third party to receive a ballot for people who are sick or disabled. Miller, who as an attorney has litigated several election law cases, said Sheriff McGovern could face some legal issues related to his involvement. He said that likely would hinge on whether Sheriff McGovern ever made any false statements about where his mother lived, or whether people believed he may have violated the moral turpitude standards expected of a sheriff.

Double standard?

The secretary of state’s prosecution division is now reviewing the case for possible charges, but it is not clear that Kobach’s office was working on the case prior to the Journal-World contacting the office.

A Douglas County resident filed two complaints about the McGovern incidents: one was filed in early September after the primary election, and the second was filed in late October before the general election. The complainant confirmed that the secretary of state’s office never reached out to get additional information about the case.

County Clerk Shew, a Lawrence Democrat, also said he did not hear from the secretary of state’s office about the complaints. He said that is unusual, because in past instances of complaints, the secretary of state’s office has contacted him early in the process to confirm basic information about the voter’s registration and other details.

Caskey, the election official with Kobach’s office, said he didn’t have information readily available on when the case was forwarded to prosecutors.

Some Kobach opponents expressed concern that Kobach may be taking these types of cases less seriously than he takes proof of citizenship cases. Nationally, Kobach — a prominent Republican who was considered for positions in the Trump administration — has become one of the most enthusiastic supporters of laws requiring people to show proof of citizenship before they can register to vote.

Doug Bonney, legal director for the ACLU of Kansas, said it was “peculiar” that Kobach wasn’t providing at least as much attention to this issue as he was to the proof of citizenship issue.

“To be this loosey-goosey on the definition of residency, and then insist that people — who you don’t have any real reason to believe are illegal — to come up with documents is just ridiculous,” said Bonney, who has been part of the legal team fighting some of Kobach’s proof-of-citizenship laws.

Caskey said there is a reason the office hasn’t focused on the issue and why it doesn’t plan to propose any changes to the residency definition this legislative session.

“There has not been a clear answer that is better,” Caskey said. “It is difficult to come up with a definition that accounts for every situation that could occur with residency.”

Caskey said to try to do so could easily result in government overreach.

“It is very difficult for government to say this is your intent,” Caskey said. “Government doesn’t know that better than you.”

Rep. Miller, the ranking Democrat on the House Elections Committee, agreed that it may be difficult to change the law to account for every situation. Instead, he said the secretary of state just needs to be committed to enforcing the law on the books. At the urging of Kobach in 2015, lawmakers granted the secretary of state’s office prosecutorial powers on voter fraud issues.

Miller said the McGovern case will provide a clue into whether Kobach intends to use the power in an even-handed manner.

“There is no reason that case shouldn’t have a formal investigation, and if he doesn’t charge her, he should explain why,” Miller said. “This is exactly what he asked for. There are people who suspect he will pick and choose who he charges.”

Caskey said there is no timeline on when a charging decision will be made in the case.