County commissioners have taken the first step toward compliance with a state law that requires the destruction of ballots from past elections by voting to allow Chairman Mike Kelly to appoint two bipartisan observers to the process.
The decision approved Thursday by the county commission is limited to the appointments and does not give the go-ahead for ballots to be destroyed yet.
However, commissioners ended up discussing what had originally been listed as a consent item because of a request from the sheriff’s office to preserve the ballots.
State law requires the destruction of ballots
Kansas law requires the county election commissioner to destroy ballots from local elections six months after the election.
State and national ballots are to be destroyed 22 months after an election.
Additionally, two electors of “approved integrity and good repute” from the two leading political parties must be appointed by county commissions to observe ballots’ destruction.
Under KSA 25-2708(b), this would not happen when an outcome is contested.
“If the election of any officer or any question submitted at such time is being contested, the ballots shall not be destroyed until such contest is finally decided,” the statute says.
Sheriff’s Office asked county to keep the ballots
Johnson County’s old ballots have not been destroyed since 2019 because Sheriff Calvin Hayden asked that they be kept due to his ongoing investigation of election integrity.
In more than two years, that probe has yielded no criminal charges and just one referral to prosecutors for an alleged instance of voter intimidation, according to public records obtained by the Post.
The county recently received another request from the Kansas Secretary of State to destroy the ballots, according to an email from county legal counsel Peg Trent notifying the sheriff’s office of the impending vote on the observers.
On December 5, commissioners received a letter signed by Det. Kevin Cronister on behalf of the sheriff’s office once again asking that ballots be preserved due to “an open criminal investigation.”
The letter said sheriff’s investigators have been collaborating with other county governments that may have seen “potential data breaches”using Election Systems and Software (ES&S) and Konnech Inc. election management software. The letter did not offer specifics on which counties or what potential breaches.
“This is especially important as ES&S finds itself once more in the news for ‘programming errors’ leading to vote-flipping and technical issues on Election Day, November 7th, 2023,” the letter said.
That reference was apparently to a clerical error in one Pennsylvania county on retention of judges.
County asks if sheriff plans to issue subpoenas
The letter also said the sheriff’s investigators are waiting on legal issues in Los Angeles County, California, to be cleared up so electronic evidence from Konnech can be examined to determine if ES&S systems were affected.
Konnech came under fire a year ago after its leadership was accused of illegally storing data about poll workers on servers in China, but that criminal case was later dropped.
“We respectfully implore you not to destroy or dispose of any evidence that may be pertinent to this investigation, to include the ballots currently being held. A full investigation cannot be completed without eventual access to these ballots and the ability to review all data and evidence in totality,” Cronister wrote to commissioners.
Trent responded by asking if the sheriff plans to serve the county election commissioner with a search warrant to seize the ballots and related information.
“I suggest you follow up with the Secretary of State with your request to preserve the election records beyond the requirements of state statute,” she wrote in an email.
Commission rejected proposal to delay ballots vote
Commissioners voted down a request by Commissioner Charlotte O’Hara to delay a decision on the observers’ appointments until next week.
O’Hara said she thought the sheriff sent the letter for a reason.
“I’m just amazed that we don’t have the courtesy to just wait a week and have some conversations and see what direction this is going,” she said.
Commissioner Michael Ashcraft suggested the observers be nominated by party leaders and approved by the entire board rather than just the chairman, due to the “hyper partisan nature” of election issues.
Having full board approval “would guard you and this commission from any suggestion that who is appointed is somehow not fairly representative of those two political parties,” he said.
But Kelly said he wanted to avoid putting names of the observers out for possible ridicule and harassment.
“It’s really unfortunate that this issue has become so hyperpartisan and full of misinformation and a lack of good faith,” he said.
No one spoke about the item during the public comment period.
The commission ultimately voted 5-2 to allow the appointments to go forward, with Ashcraft and O’Hara dissenting.
Roxie Hammill is a freelance journalist who reports frequently for the Post and other Kansas City area publications. You can reach her at roxieham@gmail.com.
