Wrangling between the county commission and Sheriff Calvin Hayden over preservation of Johnson County election ballots from years past is not over, even though the ballots have already been destroyed.
State law requires the destruction of old ballots, but Attorney General Kris Kobach may render a legal opinion on whether the county had the authority to destroy the ballots as Hayden’s investigation — which in more than two years has yielded no criminal charges — continues.
Kansas Sen. Mike Thompson and County Commissioner Charlotte O’Hara have also gotten involved, with both in recent months sending letters to Kobach’s office requesting an opinion on the matter.
Last week, the county commission voted unanimously to submit its own legal brief to Kobach’s office, detailing the county’s position.
That came in the form of a letter from Chief Legal Counsel Peggy Trent, which was sent Tuesday saying an AG opinion would require fact-finding beyond the scope of Kobach’s office.
It also said the process seeking a formal opinion from Kobach is being inappropriately used for the potential criminal prosecution of Johnson County Election Commissioner Fred Sherman.
A history of the sheriff’s election investigation
The potential for a formal legal opinion after the fact is the latest twist in a dispute between the sheriff, the county commission and the election office over Hayden’s open-ended investigation of election procedures that has been running since 2020.
That year, Democrats Joe Biden and Kamala Harris carried the county over Donald Trump and Mike Pence with 52.7% of the vote. Shortly after, Hayden began telling Republican groups he had doubts about the solid Democratic win and increase in Democratic registrations in a county that has historically voted Republican.
As time went by, he also questioned the handling of mailed ballots and drop boxes and the county’s use of a software system for managing poll workers.
Hayden opened an investigation into the county’s election procedures and integrity, promoting his suspicions at right-wing conferences and during a committee hearing at the Kansas Legislature.
However, only one incident was ever referred to District Attorney Steve Howe’s office, and Howe declined to prosecute saying there wasn’t enough evidence to support it in court.
Because the investigation remained open, ballots from 2019, 2020 and 2021 were not destroyed after 22 months, as required by state statute.
But late last year, after reminders from the Secretary of State’s office, commissioners took the first steps toward destroying the paper copies of cast ballots by agreeing to appoint two bipartisan observers.
Sheriff’s officials again objected, citing the investigation.
AG sent letter supporting Hayden in December
In late December, Kobach offered his support for Hayden in a letter to county Election Commissioner Fred Sherman, expressing concerns that the ballot destruction may hinder the investigation.
In that letter, Kobach referred to the ballots as “potential evidence” that should be retained until the case is formally closed and any prosecutions have taken place.
“If your office has concerns about providing storage space for these records, the Johnson County Sheriff’s Office has notified my office that it is able to provide secure storage space to ensure that any potential evidence that relates to their criminal investigation is preserved,” Kobach’s letter concludes.
State lawmaker requested AG’s opinion
Thompson, a Republican state senator from Shawnee, joined the fray on January 24 with a letter to Kobach’s office requesting a formal opinion.
“The statute relied upon by the [county] Commission arguably does not consider the possibility of the ballots being evidence in a criminal investigation,” Thompson wrote.
“Therefore, I respectfully request your opinion on the authority of the Johnson County Election Commissioner to destroy paper copies of cast ballots, when those ballots are subject to a pending criminal investigation by the Johnson County Sheriff,” the letter says.
Thompson’s request, however, was not the first.
County commissioner O’Hara also asked for AG to weigh in
Emails released Tuesday along with the county’s legal response show Commissioner Charlotte O’Hara requested an attorney general’s opinion on December 21.
Her request questioned whether Sherman should go forward with the ballot destruction.
“Would this destruction of evidence, noted and identified by the Johnson County Sheriff’s office, constitute a criminal offense/action?” an email from O’Hara to Solicitor General Anthony Powell read.
Her request for an opinion was denied because of a policy forbidding attorney general opinions to individual commissioners.
Thompson took up the cause with drafting help from the Kansas Legislative Research Department, according to other emails provided.
“Charlotte O’Hara, a Johnson County Commissioner, is looking into these issues, which is why I copied her on these requests,” Thompson wrote to Jordan Milholland and Leighann Thone of the research department.
County defends ballots’ destruction
Last week, county commissioners returned from an executive session and voted to send their own brief to Kobach with no public discussion. All seven voted in favor.
On Tuesday, Trent outlined the county’s position.
Among other reasons, Trent wrote that “the attorney general opinion process is being inappropriately utilized for the potential criminal prosecution of the Johnson County Election Commissioner.”
The request for an AG opinion also requires a factual determination of the underlying crime Hayden is investigating, Trent wrote, which she said is beyond the scope of his officer.
“While we do not know what crime the Sheriff is investigating, his authority is limited to investigating state crimes,” she wrote. “It is unclear whether the sheriff has jurisdiction to investigate the alleged activities described in his letter.”
According to Kansas law, Trent wrote, access to election ballots is available under very limited cases.
The sheriff could seize ballots during a criminal investigation but would have to show probable cause for the court order or search warrant, she wrote.
Trent concludes by asking the Attorney General’s office to decline to issue an opinion.
