It was a free-wheeling discussion that included calls for the elimination of all voting machines, unfounded insinuations that undocumented immigrants are voting, and promises that the sheriff was closing in on one of the biggest investigations of his career — despite no evidence of widespread fraud in Kansas’ most populous county.
An hour in, an older woman piped up with an apparent call for action. “Now that I’m older, I’m not afraid to go to jail,” she said to Johnson County’s top law enforcement officer.
Hayden chuckled and reminded her he’s bound by the constitution.
“We are not,” the woman responded.
The episode,posted to right-wing video sharing site Rumble, highlighted a phenomenon that has grown over the past two years in Kansas and the country as a whole. A growing collection of citizens no longer trust the outcomes of elections and promote claims of massive fraud without any basis or proof.
Though exaggerated claims of voter fraud are not new to the Sunflower State, former President Donald Trump’s continued refusal to accept his 2020 defeat helped set a fire in Kansas that continues to spread ahead of the Nov. 8 midterm election.
In August, election deniers sought a recount of a constitutional amendmentdefeated by 18 points and are now seeking a criminal investigation into the state’s top election official. Some of the same people have filed frivolous lawsuits seeking a revote of the 2020 election, the elimination of dropboxes and entirely hand-counted elections. They’re bolstered by a Johnson County sheriff’s investigationand Republican politicians who haveindulged the unfounded claimseither through lawsuits or legislation.
Kansas Attorney General Derek Schmidt, the GOP nominee for governor, signed onto the Texas-led lawsuit that aimed to overturn the 2020 presidential election. Former Kansas Secretary of State Kris Kobach, who is seeking to succeed Schmidt as attorney general, advised Texas on its unsuccessful effort to invalidate President Joe Biden’s victories in swing states.
As Kansas heads into the Nov. 8 election with one of the most competitive races for governor in the country on the ballot, the onslaught of election denialism poses real risks, voting rights advocates argue.
“The lesson of this stuff being so big in Kansas is really just how dangerous of a gunpowder that’s building here,” said Davis Hammet, founder of the left-leaning civic engagement group Loud Light.
“If (Democratic Gov.) Laura Kelly wins reelection in this context, because of the environment that Derek Schmidt and others built up, there’s gonna be people that believe their government was just stolen from them,” Hammet predicted.
Schmidt’s campaign manager C.J. Grover assured The Star in a statement that Schmidt would accept the gubernatorial results regardless of the outcome.
“Of course the attorney general will accept the certified election results - as he always has,” Grover said. “AG Schmidt has long said that Kansas elections are secure because of the strong work the Legislature has continually done over many years to enact election integrity measures like voter ID, requirements for drivers’ license numbers to obtain mail ballots, and restrictions on ballot harvesting.”
But the stakes are greater than the outcome of any single electoral contest.
As this anti-democratic trend accelerates, election experts and officials from both parties worry about lasting damage to institutions. U.S. Sen. Jerry Moran, a Republican whose own 60-point primary victory is the subject of a lawsuit from his challenger, said Kansas and the country are on a dangerous path as efforts to undermine faith in elections take hold.
“The danger is that we live in a country in which we have to have faith in its institutions. Certainly there are things that need to be changed. We need more information, we need more transparency. There are laws that can improve circumstances. But you need to trust the basic institutions that allow our society to function, that protect our freedoms and liberties,” said Moran, the state’s senior member of Congress and the only Kansas Republican who voted to certify the 2020 election.
“And a constant attack on those institutions diminishes the chances that we continue to live in the country that provides the freedom and liberty that we have today.”
Denialists Still Won’t Accept Abortion Recount
Kansas Secretary of State Scott Schwab, an Olathe Republican, has repeatedlyinsisted Kansas’ elections are safe and secure.
In August, an anti-abortion activist and voter fraud conspiracistraised around $120,000 to force a hand-recount of the landslide 18-point defeat of an anti-abortion constitutional amendment in nine counties, including populous Johnson and Sedgwick Counties. The recount covered 60 percent of the ballots cast statewide. The final results showed only a change in .002 percent of ballots, an infinitesimally small amount of the more than 556,000 ballots recounted.
Schwab called this evidence of the system working. But the denialists weren’t assuaged.
“Just like they’re still talking about the 2020 election there will be people talking about the 2022 election,” Schwab told reporters after certifying the August 2022 results. “There’s just nothing you can do … it has been proven beyond any doubt that we got the election right.”
At least seven lawsuits have been filed seeking a change to the 2020, 2021 or 2022 election results in Kansas.
A lawsuit filed by several Kansas activists in federal court in mid-September makes unfounded claims of voter machine manipulation. Using those claims, it calls for the 2020 presidential election to be rendered void and redone, the elimination of existing voting machines, the elimination of dropboxes, the elimination of Kansas’ three-day grace period for advance ballots and for the launch of a criminal investigation into Schwab.
Wichita anti-abortion activist Mark Gietzen and Moran’s primary challenger Joan Farr also filed suits seeking recounts or revotes of the 2022 primary.
The lawsuits followed separate suits in Johnson, Sedgwick and Shawnee counties seeking to eliminate dropboxes and block the routine destruction of 2020 ballots.
Gietzen also filed a criminal complaint with the Kansas Bureau of Investigation against Schwab last week claiming the secretary of state violated state law regarding ballot harvesting. The complaint and lawsuits are highly unlikely to advance.
“It’s a joke to have certified the election under these conditions,” Gietzen said without evidence of fraud. He pointed to a delay in Sedgwick County canvassing as a source of his concerns.
Gietzen and Missy Leavitt, who spearheaded the recount effort and are plaintiffs on some of the lawsuits, have focused on a technological error that affected one Cherokee County commission race as evidence that the 2022 primary election was tainted by malware and must be recounted.
Rebecca Brassart, the Cherokee County Clerk, said that’s not what happened.
Brassart said the thumb drives her office originally received didn’t work correctly when tested and she had to order a new batch. A human error occurred in one thumb drive that caused candidate tallies in that race to flip. No other races were impacted, she said.
The error was identified through the state’s standard post-election audit and Brassart said she planned to update her tech testing procedures to prevent future instances.
“I think some people ran with something that wasn’t truly there,” Brassart said.
Speaking to reporters last month Schwab pointed to that episode as a “shining moment” where a mistake happened and the system worked correctly to identify and fix it.
“People think administrative errors equals fraud and there is no logical connection there,” Schwab said.
Hayden’s Investigation in Johnson County
In March, Hayden announced he’d opened an investigationinto alleged voter fraud in the 2020 election.
Hayden has pointed to Johnson County’s shift to the left as evidence of irregularities. Speaking to the Liberty People, he noted that Johnson County didn’t look like it did when he was growing up.
In 2020, Biden was the first Democrat to win the county in a century, but the result was not unexpected based on the county’s long-term shift. The reality is the county is not the Johnson County Hayden grew up in. It is a prime example of a suburban area that has been trending blue as it grew more diverse — and saw an acceleration in that political change as a backlash to Trump.
The sheriff’s office declined The Star’s request for an interview with Hayden but he told the Liberty People the investigation was one of the longest, most intense, the sheriff’s office had ever undertaken — though he acknowledged he lacked the probable cause necessary to execute a search warrant.
“I’m so sick and tired of hearing you’re hurting our democracy,” Hayden told the group. “We don’t have a democracy. We have a constitutional republic and you vote on your representative and, by golly, they’re supposed to serve your requests.”
In Johnson County, a crowd of individuals showed up to an August 11 county commission meeting to support Hayden’s investigation. Snider, a plaintiff on a lawsuit seeking to invalidate the 2020 election who has rallied with Hayden, warned commissioners to certify the August 2022 results “at your own peril.”
Hayden’s probe blocks Johnson County’s annual work of disposing of election documents, said Johnson County Election Commissioner Fred Sherman. This gives the impression that the election never truly ended.
“The policy basis in election law is that at some point you’ve got to end the election. The lead is not contested, the results are there. We can’t go back and redo, obviously, the election results,” Sherman said. “The people in office have been there for two years now.”
Johnson County is also one of many election offices nationwide getting bombarded with record requests and lawsuits that aim to retain these documents. Much of the information requested, Sherman said, doesn’t exist or isn’t public record but it’s difficult to explain that.
“There’s a lot more folks that are asking detailed questions and they don’t really understand a lot of the complexities or even the policy basics of how certain facets of elections are administered,” Sherman said.
The increased scrutiny is a drain on election offices. Rick Piepho, the Harvey County clerk and elections chair for the Kansas County Clerks and Election Officials Association, said he’s looking at longer days and more weekends heading into November to respond to records requests.
“I can’t miss my deadline. The election is going to be on Nov. the 8th no matter what, so I have to make it happen,” Piepho said.
Piepho is beginning to see good election clerks in Kansas retire early and lose the love for their jobs because they are constantly under fire.
“It’s translating to burnout.”
Danielle Lang, senior director for voting rights at the nonpartisan Campaign Legal Center in Washington, D.C., said local election officials have been under increasing pressure in recent years.
“These folks who have done that kind of quiet work of making sure our elections run well have suddenly turned into kind of targets for harassment by conspiracy theorists,” Lang said.
Piepho himself is growing increasingly frustrated because no level of proof is enough, especially given that Trump supporters are claiming the election was stolen in a state their candidate won by nearly 15 percentage points.
“I don’t know what it’s going to take,” Piepho said. “In my mind, we’re already doing all the things we need to do to prove the system works. It’s just frustrating that they won’t listen to any of the proof.”
Mark Johnson, a Kansas City attorney who won the federal case to strike down Kansas’ proof of citizenship voter registration law, said he’s seen conversations around election fraud go from “partway serious to completely ludicrous” in the last two years.
“In Kansas, I think that the secretary’s office and the county election officials have been remarkably restrained in the face of the provocations,” Johnson said.
The local officials under fire are also the most well-equipped to combat election denialism, Josh Douglas, an election law professor at the University of Kentucky, said.
“I think there are a group of people who are not election liars — which is a term I prefer even over election deniers because they are literally lying, they’re just they’re choosing not to believe the truth — but there are people who listen to them who say ‘I’ve heard so much of this is there anything there?’” Douglas said. “And local officials on the ground can be really powerful, incredible voices to demonstrate the sanctity of the system we already have.”
Election clerks that talked to The Star said they devote more energy than ever explaining election processes.
For his part, Piepho has sought to bring deniers into the process.
“If I can get them involved and have them know more of the actual processes instead of just what they read from the pillow guy or whoever then they will more than likely be an advocate or at least not be so adamant about fraud happening,” Piepho said, referencing My Pillow CEO Mike Lindell, a Trump ally who has spread conspiracy theories.
Sherman said his office needs to be prepared for more scrutiny, and possibly another recount, heading into the general election.
“We need to prepare for this like the 100-year flood,” Sherman said. “But the system’s in place that if and when we need to verify those paper ballots we can do so.”
How Kansas Leaders Have Responded to Conspiracy Theories
As local officials confront the consequences of election denialism, state-level politicians have often indulged it.
In addition the 2020 presidential litigation, Schmidt has also signed onto a North Carolina lawsuit that would strip state supreme courts of their judicial review power in election laws. Both candidates have landed on national lists of election deniers seeking statewide office though Schmidt has not consistently mentioned the lawsuits on the campaign trail.
In a statement, Schmidt’s office spokesman John Milburn framed both lawsuits as Schmidt seeking an answer to constitutional questions on the role of state legislatures in elections. He said the attorney general has consistently supported sending this question to the Supreme Court since 2019.
“Only the U.S. Supreme Court can decide definitively what that constitutional text means, so AG Schmidt was pleased when the Court earlier this year finally agreed to address the matter in the context of the North Carolina redistricting dispute, and naturally he once again joined in an amicus brief seeking resolution of this legal issue in that case,” Milburn said in a statement.
Brendan Nyhan, a Dartmouth political scientist and founder of the democracy watchdog group Bright Line Watch, said election conspiracies taking hold in red states like Kansas illuminates how far these claims have gone.
“If the election was rigged, aren’t all the elected Republicans in Kansas illegitimately elected who won in 2020,” Nyhan siad. “That underscores the bad faith nature of the claims being made … you can see how these claims have gotten out of control for Republicans.”
Meanwhile, Republicans in the Kansas Legislature have considered and passed a variety of changes to election laws.
During the 2022 legislative session, the Kansas Senate Federal and State Affairs committee held two days of informational hearings on elections. The hearings featured widely debunked conspiracy theorists, like Doug Frank, as well as state-level activists who presented to lawmakers about unproven theories of election tampering.
State Sen Rob Olson, the Olathe Republican who organized the hearings, said he felt it was his responsibility to hear out concerned Kansans.
“That’s my job when people are upset to look into things,” Olson said.
But others said Olson had granted these folks a platform that lended their ideas an appearance of legitimacy they didn’t deserve.
“Giving them a platform is what allows these things to take hold,” state Sen. Ethan Corson, a Fairway Democrat, said. “Elected officials … need to stop coddling and playing footsie with these fringe conspiracy theorists.”
A few changes in election procedure have come as a result of the denialist movement.
In 2021, the Legislature approved two sets of election lawsthat barred Kansans from returning more than 10 ballots on behalf of other Kansans. The laws also created a new criminal statute against “impersonating an election official” that was written so broadly many civic engagement groups halted voter registration activities.
Johnson, the attorney that has litigated against the state in election cases, said that is the most tangible impact of election conspiracy in Kansas.
“The damage can’t be undone at this point,” Johnson said. “There are going to be many thousands of people. A significant number of people that should be registered voters that aren’t going to be registered.”
Hammet, the progressive activist focused on ballot access, said it was jarring to see the Legislature shift gears from working with him on election laws in 2020 to pursuing laws that limited ballot access in 2021.
“It really became every single week there was a new bill we had to research to say here’s how many people you’re gonna block from voting if you do this,” Hammet said. “That onslaught of voter suppression just being called voter integrity was mind blowing.”
In the 2022 legislative session, lawmakers tried and failed to pass a bill that would have strictly limited ballot dropboxes.
Piepho said changes to law, such as a new rule requiring ballot paper to be watermarked, is creating unfunded mandates clerks are struggling to keep up with. He said lawmakers continued focus on election procedure creates an image that something is wrong.
“It’s stuff like that that’s building the distrust in the process that’s already a good process,” he said.
That distrust, Nyhan said, challenges citizens’ established understanding of fact and risks rendering democratic systems meaningless in the long term.
“The modern authoritarian still holds elections. They’re just not free and fair,” Nyhan said. “There’s no tanks in the streets moment. It’s the slow hollowing out of people’s trust in the system and trust in the facts that they’re given.”
©2022 The Kansas City Star. Distributed by Tribune Content Agency, LLC.
