Records show Kansas election officials refused call to police gender markers on voter files

TOPEKA — A Kansas Republican Party officer called the Secretary of State’s Office in July to ask why a new state law that regulates gender markers wasn’t being applied to the voter registration of a transgender Democrat running for a Kansas House seat.

Senior election officials disagreed with his interpretation of Senate Bill 244, the new law that requires bathroom use and gender markers on government documents to align with an individual’s sex assigned at birth.

Clay Barker, general counsel for the Secretary of State’s Office, concluded that while the law requires voter registrations to reflect an individual’s sex assigned at birth, election officers are not responsible for enforcement. He inadvertently revealed his legal analysis in records obtained by American Oversight, a nonprofit government watchdog group based in Washington, D.C., which shared the records with Kansas Reflector.

State officials say gender designations are a nonfactor for voter registration and candidate filings, but the records point to the far-reaching and uncertain implications of legislation passed in haste earlier this year without public input.

“Every Kansan deserves a government that treats them with dignity and provides clear, public information about how its laws affect their rights,” said Chioma Chukwu, executive director of American Oversight. “Protecting against the quiet erosion of the fundamental right to vote is central to our mission and why we sought these records.”

Under SB 244, individuals who use a bathroom that aligns with their gender but not their sex assigned at birth can face fines, jail time and — under a bounty provision — civil lawsuits from “aggrieved” individuals. The law also invalidated hundreds of driver’s licenses for those who had changed their gender markers.

American Oversight sent requests to the Kansas Department of Revenue, Kansas Department of Health and Environment, and the Secretary of State’s Office for records regarding the implementation of SB 244. Only the Secretary of State’s Office has complied with the requests.

Barker responded with emails that include an exchange between him and Bryan Caskey, the state elections director. They show Roger Lomshek, a Pittsburg resident who serves as treasurer for the Kansas Republican Party, called the office about Avery Rowland, a Democrat from Girard.

“Roger Lomshek is alleging that SB 244 applies to voter registration and is questioning why a county is not following this law,” Caskey wrote in a July 6 email. “I do not agree with his interpretation.”

Barker attempted to redact his answer to Caskey by placing a black box over it in the PDF file he provided to American Oversight. The file allows the black box to be deleted, revealing his legal analysis.

Barker wrote that the law “mandates the use of biological sex at birth anywhere” that terms like “gender” are used.

“So gender on voter registration form or declaration of intent for precinct committee person — the voter or candidate must use biological sex at birth,” Barker wrote. “The duty is on the voter or candidate.”

“The statute does not place a duty on the county election officer to verify information on the voter registration,” he added.

The analysis was silent on whether anyone else would have the authority to invalidate a voter registration by enforcing the law. In response to questions for this story, Whitney Tempel, a spokeswoman for the Secretary of State’s Office, said “gender discrepancies can never be a basis for denying anyone the right to vote.”

“What the records show is concerning: the Secretary of State’s own office privately analyzed how this law’s requirements could impact voters, while publicly maintaining that the law had nothing to do with the office’s responsibilities,” Chukwu said. “The Secretary of State’s vague assurance that gender discrepancies will not be used to deny anyone the right to vote is no substitute for clear, written guidance. Kansans should not have to rely on informal assurances when their right to vote is at stake.”

Danedri Herbert, a spokeswoman for the Attorney General’s Office, offered a similar assessment.

“An individual’s sex is entirely irrelevant to being able to vote or to file to run for the Legislature,” she said.

Rob Fillion, executive director of the Kansas GOP, didn’t respond to an email sent Thursday or a phone call and text Tuesday asking to speak with Lomshek about his interest in Rowland’s voter registration.

Rowland said Lomshek’s interest in her was “all news to me” but that she “kind of knew this might become an issue.” She said she knows who Lomshek is from the Crawford County political scene but that they have had no personal interactions.

Rowland last updated her voter registration in 2023, she said, after she changed her name. She said her file would reflect that the gender listed on her driver’s license at the time was “male.” That would mean she is complying with the new law.

She is running against Dan Muter, of Pittsburg, who defeated incumbent Rep. Ken Collins, of Mulberry, in the GOP primary.

“There are much bigger issues in the world,” Rowland said. “Transgender folks are not the 1% of the world screwing everything up. I feel sorry for these people that their world is so small that I am the biggest thing in it. I’m more concerned about education and highways and economic opportunities than what’s on my driver’s license. I want everybody to succeed.”