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The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government law.
Johnson County Sheriff Calvin Hayden doesn’t want you to know anything, other than what he reveals, about what the local media is calling a “months-long, taxpayer-funded probe” into unfounded allegations of election fraud in Johnson County.
First, to reiterate the facts about the 2020 election: Countless officials and scholars have repeatedly affirmed that there was no evidence of voter fraud playing a role in Donald Trump’s loss. According to Johnson County election officials earlier this year, “we have not seen any evidence of fraud and believe the allegations without proof are not in the best interest of our county.”
In what one would think would be the last word on the subject in this state, Kansas Secretary of State Scott Schwab recently explained that in each of the over 300 audits his office has conducted since 2019, which involve “hand counting a precinct and it matches what you tabulated after election, I mean where are you finding fraud? You’re finding accusations, but the math shows that the elections are secure.”
Even so, polling suggests that up to 70% of Republicans still believe that Joe Biden was not elected legitimately.
That a majority of the Republican Party appears willing to ignore the facts is one thing. But it’s quite another for a Republican sheriff to spend taxpayer dollars on a monthslong probe that has resulted in no arrests, call it a “criminal investigation” and keep secret the records documenting those expenditures.
The public became aware of the probe only because Hayden openly discussed it with groups such as the Northeast Johnson County Conservatives at an event in the Kansas City area in February and the Constitutional Sheriffs and Peace Officers Association at that organization’s conference last month in Las Vegas. There, Hayden led a panel titled “2000 Mules: Law Enforcement Has To Step In At This Point. Will Sheriffs Investigate?”
But when a local media outlet requested records related to the probe under the Kansas Open Records Act, including the receipts for taxpayer funds to pay for it, Hayden denied the request in its entirety, claiming that the requested records were created as part of a “criminal investigation.”
To be sure, KORA allows law enforcement agencies to withhold records “compiled in the process of preventing, detecting or investigating violations of criminal law.”
But despite a bevy of election crimes already on the books, Hayden has yet to say which of those laws he thinks were violated, let alone identify suspected violators. And other than statements about the probe he has made as an invited speaker, public information is mostly limited to his July 19 news release and news conference that same day where he defended the probe primarily on the basis that his office has received 200 tips.
That news conference was on the heels of the “2000 Mules” conference, where Hayden claimed, without evidence, that his office has “a whole lot of reasonable suspicion and we’re starting to develop some probable cause.” Johnson County Sheriff Calvin Hayden said the department’s investigators continued to examine potential of election fraud in the county. He promised deputies would “tighten” oversight and security of future Johnson County elections because things were “just not smelling right.” (Tim Carpenter/Kansas Reflector)
Less than two weeks after Hayden’s news conference, Schwab pushed back, indicating to a local TV station during an interview late last month that “it’s unlikely Hayden received 200 complaints based off the fact” that Schwab’s office “got about 12.” Schwab told the station that Hayden’s probe was justifiable only “if he’s got evidence,” and that “there’s got to be probable cause and right now, that’s not what we’re seeing.”
Schwab underscores the purpose of an investigation: to make arrests. To support an arrest for a violation of Kansas law, a law enforcement agency must be able to show probable cause that the alleged crime has been committed.
The Kansas Supreme Court has defined probable cause in part as “the reasonable belief that a specific crime has been or is being committed.”
Reaching that threshold requires collecting evidence. Law enforcement agencies conduct investigations to collect evidence of criminal activity.
But as Schwab has made clear, there simply is no evidence of specific criminal activity for Hayden’s election integrity probe to collect. The best Hayden seems to be able to do to imply that he reasonably believes fraud occurred because the 2020 presidential election was the “first time since 1914 that Johnson County didn’t vote” for the Republican nominee.
That’s not an investigative lead. That’s wistful thinking.
But perhaps of even greater concern is that Hayden’s use of KORA may set a harmful precedent whereby a law enforcement agency could designate any activity it chooses as a “criminal investigation,” regardless of whether such activity is reasonably likely to lead to the arrest of any suspect. That keeps the public in the dark about questionable expenditures of taxpayer dollars on the activity.
If Hayden persists in keeping records of public expenditures away from the taxpayers on the basis that his probe is a “criminal investigation,” the Legislature should consider amending KORA to ensure that an agency may withhold such records only if the investigation is likely to lead to the arrest of a suspect.
About the writer
Max Kautsch, licensed to practice law in both Kansas and Nebraska, focuses his practice on First Amendment rights and open government law. He helps news media and members of the public assert rights of access to court proceedings, court records, and government agency documents. He serves as the legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters and is an adjunct professor at the University Kansas School of Law. Kautsch is also hotline counsel to both the Nebraska Press Association and the Nebraska Broadcasters Association.
Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here. Find how to submit your own commentary to The Lawrence Times here.
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