Kansas Secretary of State's Office Letter

April 5, 2024
Anthony J. Powell
Solicitor General
Office of the Kansas Attorney General
Our agency’s input was sought regarding the request by Senator Thompson seeking an
“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 Secretary’s position, after consultation with relevant county officials throughout
Kansas, is that unless there is a judicial directive to stay the mandatory destruction of ballots –
either a warrant, hold order, or injunction -- then the mandatory destruction directed by K.S.A.
25-2708(b) must occur despite a request from law enforcement to stay destruction. Seeking a
judicial order is the best way to balance the statutory mandate, which supports the public policy
of election finality, against the needs of an investigation, while providing both investigative
confidentiality and certainty to the election officer.
Based on communications with your office, it is our understanding that this opinion is to
give advice only on a question of law applicable to future events of statewide interest. The
opinion will not respond to the Johnson County-specific elements of the inquiry. The long litany
of events occurring in Johnson County between August 4, 2022, when an unsuccessful lawsuit
was filed seeking a TRO to stop ballot destruction, and February 21, 2024, when the ballot
destruction was complete, are, therefore, not relevant to this opinion. Otherwise, the opinion
would be premised not on a matter of law as required by K.S.A. 75-704, but on a voluminous,
extensive, and time-consuming factual investigation.
To our knowledge, only once in 131 years has a Kansas county election officer been
placed in the predicament of having law enforcement request that the county violate state law
and not comply with the mandatory legislative directive to destroy ballots after the 22-month
statutory hold period.
There is no other law like K.S.A. 25-2708 in the breadth of the Kansas Statutes. K.S.A.
25-2708(b), adopted in 18931, is unique among Kansas election record retention laws in that it
mandates ballot destruction, “shall destroy them without previously opening,” after a specific
statutory hold period2 and specifies that the destruction is to be observed by “two electors of
approved integrity and good repute, members of the two leading political parties.” Other election
record retention laws merely permit destruction after a statutory hold period. e.g. K.S.A. 25-2709
(“may be destroyed.”).
The closest statutory provisions to K.S.A. 25-2708 are K.S.A. 20-122(b) and K.S.A. 20-
2904(c)(2) which pertain to elections to judicial commissions. Each provide that “No one shall
be permitted to inspect the ballots received pursuant to this section except on order of the
supreme court. Unless otherwise ordered by the supreme court, at the end of such six-month
period the clerk shall destroy the ballots. . .”
Election Finality
The public policy behind the destruction mandate was and remains election finality3 and
protecting voter privacy and ballot secrecy. See Roberts, et al. v Sherman, et al, No. 22CV03913,
at 6 (Johnson Cty) (Kan. 10th Dist. Ct. Aug. 24, 2022) (“the state public interest established as the
public policy of the State through legislation is to destroy the election records 22 months after
the election.”).4
Finality ensures that there is certainty and stability in governance and that questioning an
election’s outcome and its validity is not permitted to continue indefinitely. It allows elected
officials to take office without the lingering uncertainty of potential challenges to the outcome.
Finality in elections serves as a cornerstone of democratic governance, promoting stability,
legitimacy, efficiency, and public trust in the electoral process.
The application of election finality can be found throughout Kansas election law, which
requires that election-related issues or challenges be prioritized and moved with an utmost sense
of urgency, or they are permanently lost. For example, election contests have short filing
deadlines (5 days) and expedited adjudication. K.S.A. 25-1439, et seq. Short filing deadlines (3
1
Session Laws of 1893, Chap 78, Sec 25, at 120.
2
The 22-month period is prescribed in 52 U.S.C. 20701 for any election involving a federal
candidate.
3
The character or condition of being final, settled, irrevocable, or complete, the condition of
being at an ultimate point especially of development or authority.
4
Several unsuccessful lawsuits were filed in the fall of 2022 to stop the mandatory destruction of
ballots from the 2020 election at the end of the 22-month hold period. See e.g., Harvey v
Caudillo, 2022-cv-001532 (Kan 18th Dist. (Sedgwick Cty)) (Aug/Sep. 2022); Bretz v Mannis,
2022-cv-000024 (Kan. 15th Dist. Ct (Sherman Cty)) (Sep. 2022).
days) and expedited adjudication also apply to the state objections board. K.S.A. 25-308. After a
county board of canvassers has, in good faith, correctly canvassed the returns it “cannot be
revived by its own action, or by that of a court” even if it was later discovered that it had
erroneously rejected ballots. Capper v Stotler, County Clerk, 88 Kan. 387 (Kan 1912).5
Election finality is a policy that functions similar to a statute of repose, that is, if
challenges to an election are not acted on by a specified deadline they are lost. A criminal
investigation may not necessarily be aimed at the elected official or overturning the election
outcome, but its mere existence after the statutory hold period, especially if amplified by
repeated publicity, serves to undermine the finality of an election.
The Need for a Judicial Determination
A district court is best positioned to balance the need for election finality with the need to
investigate possible wrongdoing. Once the 22-month post-election statutory hold period has
expired, law enforcement should be required to demonstrate to a court a justified need to prevent
the mandated ballot destruction. This approach aligns civil and criminal requirements providing
consistency in election law.
From the provisions of K.S.A. 25-2708 requiring judicial intervention to stay ballot
destruction in the civil realm, it is only logical to also require judicial intervention to stay ballot
destruction concerning a criminal investigation. Indeed, the District Court of Johnson County in
rejecting a civil lawsuit to enjoin ballot destruction, purportedly on behalf of law enforcement,
stated that “[i]f the Sheriff needs records longer than their scheduled destruction date, these
plaintiffs are not the proper parties to bring an action on behalf of the Sheriff.” Roberts, at 6.
This indicates the need for judicial action, brought by the proper party, to stay the law. This is
also the approach employed by K.S.A. 20-122(b) and K.S.A. 20-2904(c)(2), which require court
action to stay ballot destruction.
The only entity authorized by law to grant access to sealed ballots is a district court
adjudicating an election contest under K.S.A. Chapter 25, Article 14. K.S.A. 25-2708(a-b).
Indeed, K.S.A. 25-1436 specifies the grounds for an election contest, brought in court, which
includes allegations of criminal acts such as illegal voting, fraud in computing results, and
bribery. Further, K.S.A. 25-1447(a) requires that a party in a judicial election contest must state
to the court the reason it needs access to the ballots and in which specific precincts before the
court may grant access. Three inspectors must be present when the ballots are accessed. Id.
The ballot destruction statute enumerates a single exception to not destroying the ballots
at the end of the hold period, which is during the pendency of a judicial action adjudicating an
5
see also In re Gunn, 50 Kan. 155 (Kan 1893) (state canvassing board, misled by the untrue
certificate of a county clerk, had innocently recognized the wrong person as a Kansas
Representative. The Court concluded it could not “properly, and in accordance with legal
principles,” afford a remedy. As a result, the candidate who, in reality, lost the election, served
in the Kansas House.
election contest. K.S.A. 25-2708(b). Without a court order, a mere litigation hold letter alone is
unnecessary during the statutory hold period, because the law mandates preservation, but is
ineffective after the statutory hold period.
Judicial intervention would serve two valuable purposes.
First, it allows an experienced neutral third party to review the basis of a criminal
investigation to verify that, after the lengthy hold period, there exists adequate reason to stay the
legislatively mandated destruction. The Johnson County Court noted the need for a legitimate
reason to stay ballot destruction. Roberts, at 6. A 22-month hold period should provide more than
enough time for a competent diligent investigation to be completed, but if more time is
necessary, a court can extend the stay period.
Second, judicial intervention ensures that law enforcement does not use an interminable
investigation for partisan political reasons. The party seeking a stay of destruction should justify
to a court the need to prolong the retention of old ballots. Unchecked politicized action,
especially if it becomes the subject of repeated public comments, undermines public confidence
in both law enforcement and the election process.
/Clayton Barker
Clayton L. Barker
Deputy Secretary of State, General Counsel
Office of the Kansas Secretary of State
clay.barker2@ks.gov

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April 5, 2024

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