Will Johnson County destroy old ballots per KS law? Sheriff and officials near showdown

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Johnson County officials are moving toward destroying old ballots as required by Kansas law, despite Sheriff Calvin Hayden’s demands they hold off because of his long-running elections investigation.

The looming destruction of the ballots represents a put-up-or-shut-up moment for the hard-right Republican sheriff, whose investigation has produced no criminal charges while encouraging conspiracy theorists and election deniers.

The county hasn’t destroyed ballots from the 2019 election onward because of past requests by Hayden, who says they are potential evidence. The ballots have remained in storage in some cases more than a year after state-mandated deadlines to destroy them.

But the Johnson County Commission’s patience with the sheriff appears to be wearing thin. The county has received reminders from Kansas Secretary of State Scott Schwab, a Republican, about the state law requiring the ballots’ destruction by Johnson County Election Commissioner Fred Sherman.

After a contentious debate, county commissioners on Thursday voted to authorize Mike Kelly, the commission chair, to appoint Republican and Democratic observers to watch over the ballot destruction – a first step in a process. The top lawyer for the county also recently asked the Johnson County Sheriff’s Office whether it plans to obtain a search warrant to seize the ballots.

The destruction of the ballots would mark a rebuke of Hayden, who over the past couple years has promoted his investigation at right-wing conferences and events while assailing some commissioners as communists. A spokesperson for Hayden has indicated the Republican sheriff plans to run for a third term next year, but he already faces both Republican and Democratic opponents.

“The last I’ve heard from Hayden on this is this is a cold case. That there isn’t any new information, there isn’t any proof of any kind of impropriety or any voter fraud,” Kelly told The Star on Friday.

Hayden declined to comment on Friday.

Hayden’s investigation has fueled conspiracy theorists and election deniers who falsely claim the 2020 presidential election was stolen from former President Donald Trump. Thad Snider, a Johnson County resident who filed an unsuccessful lawsuit last year seeking a redo of the 2020 presidential election, in August praised Hayden for blocking the destruction of the county’s election materials, suggesting they could help Trump fight the criminal cases against him.

The looming showdown between Hayden and the commission appears to have been set in motion late last month, when Peg Trent, Johnson County’s chief counsel, sent Hayden an email asking whether his investigation was continuing and if he had any issue with the destruction of ballots. Johnson County Sheriff’s Det. Kevin Cronister responded in a Dec. 5 letter, requesting the county continue to hold on to the ballots.

“Potential evidence for this investigation should not be destroyed, especially prior to our review and examination of said evidence,” Cronister wrote.

The detective also provided additional details about the nature of the investigation, which appears to focus on whether elections data was potentially breached by the Johnson County Election Office’s use of the election management software Konnech.

Letter from Johnson County ... by The Kansas City Star

The county stopped using Konnech in 2022 after the company’s CEO was arrested following an investigation in Los Angeles County that involved the alleged theft and sale of personal information to third-party interests in China. The case was dropped a few weeks later, but the company remains the subject of conspiracy theories by election deniers.

Johnson County had used the software only to help manage election workers – the program had nothing to do with voting or voting information.

Konnech’s CEO, Eugene Yu, in September sued the Los Angeles District Attorney’s Office over the failed prosecution, alleging violations of his civil rights. The Los Angeles Times has previously reported the case against Yu was based largely on allegations by election deniers and conspiracy theorists.

Despite the collapse of the prosecution, Cronister’s letter makes clear Hayden continues to probe Konnech. Cronister wrote that Los Angeles County possesses servers, computers and other equipment seized from Konnech “several months ago” and that the Johnson County Sheriff’s Office is working with Los Angeles County to obtain data specific to Johnson County.

“As you may recall from previous discussion, we were advised there is evidence on these servers showing Johnson County, KS election information was sent to China through the Konnech, Inc., software leading to a potential compromise of our election management systems,” Cronister wrote.

Trent responded on Wednesday on behalf of the county, asking Cronister whether, given the open investigation, the sheriff’s office plans to serve Sherman with a search warrant to seize the ballots. Trent also appeared to imply that county officials cannot continue to hold off on destroying the ballots.

“I suggest you follow up with the Secretary of State with your request to preserve the election records beyond the requirements of state statute,” Trent wrote.

On Friday, a spokesperson with the Secretary of State’s Office told The Star in an email that Hayden “has not communicated with our office regarding ballot destruction,” adding, “We are not aware of any litigation hold or other legal action that would prohibit the county from complying with the law and destroying the ballots.”

The back-and-forth between Cronister and Trent became public during Thursday’s commission meeting discussion about appointing observers to watch the ballot destruction. The appointments by themselves don’t authorize Sherman to destroy ballots but are needed to allow him to move forward.

Commissioner Charlotte O’Hara, a conservative, urged the board to table the discussion for a week in light of Cronister’s letter. But O’Hara’s motion was shot down in a 2-5 vote.

“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.

Kelly said Friday that he is moving forward with appointing the pair to oversee the destruction of ballots. Johnson County has an obligation under state law to appoint observers, he said.

“The county is going to take its marching orders on this from the Secretary of State’s Office,” Kelly said.

The Kansas Secretary of State’s Office sent a message to all county election officials in September reminding them of the law’s requirements on ballot destruction. Anne Christiansen-Bullers, a county spokesperson, also said Sherman and the county’s legal department have received verbal requests for ballot destruction.

In November, Hayden gave a speech in which he said the election investigation won’t end “until I know our elections are safe. And I don’t know that right now.” He spoke at the Determined Patriotism Conference in Kansas City, Kansas – a self-described gathering of influencers in the “America First movement.”

Kelly said that Johnson County’s elections are “fair, safe and accurate” and that he “like others across the county are disappointed that there continues to be a theme without evidence of a lack of election integrity, which jeopardizes faith in the entire government process.”

At the end of Thursday’s meeting, Commissioner Jeff Meyers criticized Hayden for other comments he made at the far-right conference, including calling some commissioners “communists.” Meyers said the remarks were unprofessional and asked Hayden to respond.

Hayden declined, and instead voiced frustrations over the county’s lengthy discussions about his office’s budget, arguing his requests get treated differently than other departments.

“I’m taking care of the best dang sheriff’s department in the state of Kansas, maybe in the country. And we have to come in here and beg for money,” Hayden told commissioners. “I think it’s absolutely ridiculous.”