JoCo fears looming Kobach opinion is being sought to help prosecute election official

Johnson County’s top lawyer wrote on Tuesday that an upcoming legal opinion on ballot destruction from Kansas Attorney General Kris Kobach is being used to advance a potential criminal case against Johnson County Election Commissioner Fred Sherman.

Kansas law requires the regular destruction of old ballots, but Sheriff Calvin Hayden for several years requested Sherman preserve them amid an ongoing elections investigation connected to poll worker management software previously used by the county. After storing ballots for multiple elections, Sherman moved forward with the state-mandated destruction in February.

Kobach, a Republican who urged Sherman to not destroy the ballots, is now crafting a formal legal opinion on whether Sherman has the authority to destroy ballots amid a criminal investigation. Johnson County Chief Counsel Peg Trent and critics of Hayden’s investigation have said election officials have no authority to disregard state law absent a court order.

An opinion that Sherman was wrong to destroy the ballots could provide Hayden, a Republican running for reelection who has long been critical of the county’s election practices, a basis to investigate the election commissioner.

“The Attorney General Opinion process is being inappropriately utilized for potential criminal prosecution of the Johnson County Election Commissioner,” Trent wrote to Kobach in a letter obtained by The Star and dated Tuesday.

Trent Letter to Kobach by The Kansas City Star on Scribd

Kobach’s opinion was requested by Sen. Mike Thompson, a Shawnee Republican, on Jan. 24. But emails obtained by The Star show that Johnson County Commissioner Charlotte O’Hara sent a similar request in December.

At that time, the ballots hadn’t been destroyed. O’Hara asked whether destroying the ballots would constitute willful destruction of evidence if Sherman went forward. “Would this destruction of evidence, noted and identified by the Johnson County Sheriff’s Office, constitute a criminal offense/action?” she asked.

The Kansas Attorney General’s Office rejected the request on Dec. 22, citing a longstanding policy that it doesn’t provide opinions to individual county commissioners. O’Hara forwarded the email containing the rejection to Thompson about two hours later.

The next day, Thompson forwarded O’Hara’s request to legislative staff members and asked for help drafting a request for an attorney general’s opinion. He copied O’Hara on the email because she “is looking into these issues,” he wrote. The senator’s subsequent request didn’t ask specifically about the possibility of criminal action.

Trent wrote on Tuesday that Kobach had already provided his opinion, given that he wrote to Sherman on Dec. 20 asking him to continue preserving the ballots. Because of that, Trent wrote, no additional action by the state attorney general is needed or appropriate. She added that Thompson’s request is “essentially” the same request as O’Hara’s but reworded.

“A criminal investigation is not set forth in election statutes as an exception for accessing ballots,” Trent wrote.

Kobach’s office didn’t immediately respond to a request for comment.

Sherman, who was appointed by Kansas Secretary of State Scott Schwab and became election commissioner in 2021, didn’t respond to a request for comment.

O’Hara didn’t immediately respond to a request for comment.

Konnech at center of investigation

Thompson said in an interview on Tuesday that O’Hara was one of the people who had asked him to put the request in. He did not name the others.

“I was asked to get that opinion to see whether or not it was legal for them to destroy if it was under investigation,” Thompson said. “We just wanted to know what the legal side of things said.”

Thompson rejected Trent’s argument that the opinion was part of an effort to seek a criminal investigation against Sherman.

The destruction of election records came as Hayden faces a growing political challenge. Hayden, who has filed for reelection, will face a primary challenge from Doug Bedford, a former undersheriff, in the race that so far has drawn one Democratic candidate, Prairie Village Police Chief Byron Roberson.

Konnech, the election software company at the center of the sheriff’s investigation, in January sent Hayden a strongly worded letter warning him of what could come from his ”baseless investigation.”

Los Angeles County has agreed to pay $5 million to Konnech CEO Eugene Yu, who sued over civil rights violations after he was arrested there in 2022 on accusations that he illegally stored poll worker data in China. The case was dropped a few weeks later, with the district attorney citing “potential bias” in the investigation.

Johnson County had used Konnech’s software to help manage election workers; the program had nothing to do with voting or voting information. The county stopped using the software in 2022.