Voters fill out advanced ballots Oct. 25, 2022, at the Shawnee County Election Office in Topeka. (Sherman Smith/Kansas Reflector)
TOPEKA — A constitutional amendment on the November ballot would take away local attorneys’ abilities to investigate sheriffs.
Some citizens and lawyers are worried that Kansas voters don’t know the full implications of rewriting the constitution to remove the ability of local district attorneys to start legal proceedings against local sheriffs if they believe there’s been misconduct.
What is the Sheriff Election Amendment?
The amendment would require counties that elected sheriffs in January 2022 continue to elect sheriffs — meaning a sheriff’s position could never become appointed. The exception would be Riley County, which abolished the sheriff’s office after consolidating city and county agencies in 1974.
The amendment also would stipulate that county sheriffs can only be removed from office by a recall election or if the attorney general challenges their right to hold office. This change would take away the ability of local district attorneys to investigate the actions of sheriffs.
Sheriffs are elected to four-year terms in Kansas. Under state law, voters can recall a sheriff by submitting a petition containing the signatures of at least 40% of voters in the most recent sheriff election. After the signatures are approved, a recall election is held.
Currently, district attorneys, along with the attorney general, can initiate legal proceedings if they believe there’s been misconduct in a sheriff’s office. The attorney can then bring the case to a judge, who would ultimately decide whether or not there has been misconduct.
Why is this on the ballot?
The amendment is a response to discussion in Johnson County about making the sheriff an appointed position. Sheriff Calvin Hayden has been criticized for leading a criminal investigation into bogus election fraud claims. He also said he would form an “army” of his employees to defend Kansans against the Internal Service Revenue.
In late April, the Legislature passed the final version of the amendment’s text as House Concurrent Resolution 5022. The resolution passed 91-31 in the House and 39-1 in the Senate. The governor doesn’t have the authority to veto proposed constitutional amendments. Because the two-thirds threshold was met in both chambers, the amendment will be decided by voters.
Attorney General Derek Schmidt lobbied for the amendment and continues to support it.
“The office of sheriff has deep historical roots, and the longstanding practice of election rather than appointment makes sheriffs uniquely accountable to the people,” Schmidt said during the April amendment discussion.
Who supports the amendment?
Besides Schmidt, the GOP nominee for governor on the November ballot, the Kansas Sheriffs’ Association and Johnson County Sheriff’s Office have been some of the more vocal proponents.
The Kansas Sheriffs’ Association said the amendment would give voters more power and allow them to hold sheriffs directly accountable for their actions. In testimony submitted by the association in March, the association said Kansans should be allowed to elect their sheriffs.
“Sheriffs should be elected by the citizens they serve and not appointed by other elected officials or appointed by a governing board. The duties of a sheriff are much different from the tasks and duties of a police chief,” the testimony stated.
The association said there had been conflicts of interest in the past with local district attorneys investigating sheriffs.
“This would move the responsibility of the ouster procedure to the Attorney General’s Office. Thus, conflicts of interest would be eliminated,” its testimony stated.
The Johnson County Sheriff’s Office was criticized last week for spreading misleading information after posting a Facebook post saying “Voting NO on Amendment 2 would take away your right to elect your local sheriff.”
That part of the statement was removed after residents complained it was inaccurate: No current constitutional protection is at stake. An edited version is still posted on the Johnson County Sheriff’s Office Facebook page.
The post reads: “The Sheriff’s Office has received a number of inquiries regarding the proposed Sheriff’s Amendment on the ballot. For clarification purposes only, this is a simple breakdown: Voting YES on Amendment 2 would preserve your right to elect your local sheriff.”
Why do people object to this amendment?
The first part of the amendment, sheriff election and retention, could keep the controversial Hayden in his position.
But the second part of the amendment is what worries district attorneys and lawyers the most, because it could lead to abuses of power.
Under this amendment, the district attorney could choose to not investigate sheriffs they liked, playing favorites in an investigation. With no other way of holding sheriffs accountable, hypothetically a sheriff engaged in misconduct could stay in their position and keep being re-elected.
The American Civil Liberties Union of Kansas has criticized the amendment, saying it is partisan and poses a threat to Kansas democracy. At a panel discussion held Thursday by several voting rights organization groups, Amii Castle, a constitutional law professor at the University of Kansas and founder of the campus’ ACLU student group, said the amendment was problematic.
Castle said local attorneys, who worked with the county sheriff and were familiar with their actions, were best equipped to raise the alarm on potential misconduct, rather than just the attorney general, who works out of Topeka and would most likely not have the same level of familiarity with the situation.
“At the end of the day, the sheriff’s amendment would take away power from our local county attorneys and concentrate that power into one office,” Castle said.
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