‘We’ve got to find somebody’: JoCo sheriff appears to lack probable cause in election inquiry
Johnson County Sheriff Calvin Hayden, who has spent months promoting a criminal investigation into elections, told a gathering of residents last week that “we’ve got to find somebody” who knows election rigging is happening.
But the Republican sheriff appeared to acknowledge he doesn’t have probable cause, the legal standard required to seek a search or arrest warrant, after the investigation helped foster baseless suspicions of voter fraud. He also said he launched the inquiry to force the preservation of 2020 election records.
The comments came during a nearly two-hour meeting inside a Johnson County Sheriff’s Office facility. Video of the meeting, which took place Aug. 30, was posted on Friday on Rumble, a video sharing platform popular among the right-wing politicians and supporters. Hayden’s remarks offer additional insight into an investigation that hasn’t led to any charges or arrests but has helped build his profile among election deniers.
At the meeting, Hayden appeared to lay the groundwork to explain why his amorphous investigation hasn’t progressed. He told the audience that he has “tons of reasonable suspicion” but says he needs probable cause for a search warrant “to swear I know a crime has been committed.”
He also alluded to baseless conspiracy theories that allege China stole the 2020 election from former President Donald Trump. Some Trump supporters, including MyPillow CEO Mike Lindell, have promoted the baseless idea.
“Well, here’s the problem. If China is the bad guy, I’ve got a problem. I can’t put cuffs on those guys. A lot of them,” Hayden said.
“So we’ve got to find somebody that had an idea of what they’re doing and honest to God, I don’t think any of our election helpers, I’m not sure even our election folks who are putting it on, have any idea of what’s going on. I don’t really think they do,” Hayden said.
Election denialism has proliferated in Kansas, driven in part by Hayden casting a cloud of suspicion over elections in the most populous county in the state. The recently-concluded August primary election also drove baseless fears, after anti-abortion activists paid nearly $120,000 to recount the landslide rejection of an amendment to strip abortion rights from the state constitution.
The amendment lost by an 18-point margin. The recount, conducted in nine counties including Johnson, had virtually no effect on the results.
Top election officials have repeatedly emphasized the security of Kansas elections.
“There will be people, just like they’re still talking about the 2020 election, there will be people talking about the 2022 election,” Kansas Secretary of State Scott Schwab, a Johnson County Republican, told reporters last week. “It has been proven beyond any doubt that we got the election right and there is no question that the winners won and the losers lost.”
Rick Hasen, a law professor at the University of California, Los Angeles, and director of the Safeguarding Democracy Project at UCLA Law, said wild conspiracy theories are already causing people to lose confidence in election integrity.
“It started with Donald Trump but it’s grown by leaps and bounds since then. Just look at the recount over the Kansas abortion measure,” Hasen said in an email. “These kind of vague conspiracy theories about foreign country interference with voting machinery are offered without any real evidence.”
Hayden’s comments came less than a month after Johnson County Deputy Legal Director Cynthia Dunham said during a court hearing that the county legal department understood that Hayden would announce the end of his investigation in the “coming weeks.” The statement came in response to a now-dismissed lawsuit by two county residents who wanted a court order blocking the county from destroying records related to the 2020 election.
Kansas law authorizes counties to begin destroying the records in early September, a process that happens on a regular cycle after each election.
“The reason I started a criminal investigation was to preserve those records,” Hayden said, adding that a camera monitors the records, which are stored at the Johnson County Election Office.
Dunham previously said in court that Johnson County had already placed a “legal hold” on its 2020 election records because of the investigation – meaning they won’t be destroyed for now.
“I’m getting so much pressure from the county attorney, man, she’s all over me. ‘We need to get this wrapped up.’ No, no, we’re not done yet. We’ll be all right,” Hayden said, in an apparent reference to Johnson County Chief Counsel Peg Trent.
Asked about Hayden’s remarks, Johnson County spokeswoman Theresa Freed indicated, essentially, that county officials couldn’t comment.
“County staff has been directed that there’s an ongoing criminal investigation and to disclose information related to the Sheriff’s Office’s investigation is prohibited,” Freed said.
That has led in recent weeks to one-sided disclosures of information as Hayden continues to speak publicly about the investigation but other county officials are unable to comment.
Hayden’s investigation has been ongoing since last year, but it gained significant attention in July after he spoke about the investigation during a law enforcement convention in Las Vegas. In the video, Hayden said he met with Gregg Phillips, a prominent election conspiracy theorist, for five hours in Las Vegas.
Hayden and several sheriff’s deputies also met with Johnson County Election Commissioner Fred Sherman and other county officials on July 5 to discuss election security in the run up to the Aug. 2 primary election.
Trent later wrote in a summary of the gathering that Hayden had proposed his staff transport ballots from drop boxes and suggested that ballots deposited in drop boxes must be counted at the drop box site. Hayden has disputed Trent’s description of the meeting.
Clarification: The headline on this story was changed to reflect Hayden’s exact comments
This story was originally published September 7, 2022 at 3:00 PM.
