Kansas sheriff's constitutional amendment is confusing. Here's why it matters.

Kansas voters will be asked on Election Day whether they want the state to mandate that sheriffs remain an elected position in all but one county while also blocking local prosecutors from initiating ouster proceedings.

The proposed constitutional amendment on sheriffs will be on the Nov. 8 ballot and requires a simple majority of "yes" voters for passage. The amendment passed the Senate 39-1 and the House 91-31.

How would the constitution be amended?

Article 9 of the Kansas Constitution lays out the organization of counties and townships. It currently states that the Legislature shall determine what county and township officers are necessary, as well as how and why they can be removed from office. It makes no specific mention to sheriffs.

The proposed amendment would revise that article, enshrining sheriffs as a constitutional position elected by county voters. The Legislature would retain the role of setting qualifications and duties for sheriffs, among other legislative roles. The amendment would also establish that a sheriff may only be involuntarily removed from office through a recall election or by the attorney general through a "writ of quo warranto."

Why does it matter?

The amendment would make two important changes to sheriffs as an elected position, though they may ultimately have little effect for most Kansans.

One change mandates that sheriffs remain an elected office — which only matters if local governments want to consolidate city and county law enforcement or turn their county's top cop into an appointed position.

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The other change blocks local prosecutors from initiating ouster proceedings against a sheriff — which only matters if the sheriff commits misconduct, refuses to resign, a recall petition is unsuccessful and the state attorney general refuses to attempt an ouster.

Riley County is only county without a sheriff

Riley County is the only county in Kansas without an elected sheriff. It abolished the office in 1974 in favor of a countywide police department with an appointed director.

The amendment is written so that it would have no immediate effect on Riley County. However, if the county were to transition back to an elected sheriff, it would be barred from returning to an appointed position.

Dennis Butler, then the director of the Riley County Police Department, testified before lawmakers that citizens in the Manhattan area "are served by one of the most genius creations I have ever seen in U.S. local law enforcement." He called the RCPD model an "unconventional," "brilliant" and "radical transformation" of local law enforcement.

He said his own analysis found that consolidation in Riley County saves on operating cost with an added benefit of below-average crime rates, which further saves money.

Butler opposed the constitutional amendment, fearing what it could mean for local control.

Amendment would pre-empt change in Johnson County

If it passes, the amendment would prevent any other counties from abolishing their sheriff's office. The issue is most relevant in Johnson County, where the idea has been contemplated but is not being seriously pursued.

The 2021-2022 Johnson County Charter Commission did consider a pair of sheriff-related issues. One would have made the sheriff's election nonpartisan. The proposal lacked majority support and was abandoned upon legal advice that Kansas law requires elections for sheriff to be partisan. Another failed proposal addressed sheriff's office budgetary authority.

The charter commission final report shows the group did not formally consider any proposal to abolish the sheriff as an elected office.

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Yet Johnson County Sheriff's Office Deputy Greg Smith testified to lawmakers that the charter commission had pushed an amendment "to appoint the sheriff." Smith served on the charter commission by appointment of the Johnson County Republican Party.

"In our view, the office of sheriff should remain an elected office, not subject to the political whims of appointing bodies," Smith said. "This leaves the sheriff free to be able to respond to any situation as his or her training and experience dictate."

Smith said elected sheriffs provide "a check and balance" on "undue influence" from county commissioners and other officials.

"In a republic, the citizens should have the right to choose our sheriff," Smith said. "The sheriff is one of the most powerful offices in county government and should not be controlled by the politics of a county commission but instead by the citizens who the sheriff is charged, by state law, to protect."

The Kansas Sheriffs' Association also supports the amendment. Represented by Sedgwick County Sheriff Jeff Easter, the group noted past, unsuccessful efforts to abolish the office in Shawnee, Reno and Bourbon counties and a more recent interest by Sedgwick County government.

The Legislature did not pass a bill requested by Sedgwick County that would have allowed it to establish its own charter commission, which could weigh whether to eliminate elected offices. Their effort was focused on other county offices, not the sheriff.

"Too many agendas are eroding the Office of Sheriff," Easter said, calling for constitutional protection.

Election conspiracies

Johnson County Sheriff Calvin Hayden has brought extra attention to the ballot question after controversial comments on alleged voter fraud following the 2020 election. President Joe Biden carried Johnson County over former president Donald Trump.

Hayden appeared in July at a "FreedomFest" in Las Vegas, held by the Constitutional Sheriffs and Peace Officers Association, a group that believes a sheriff has greater law enforcement power in their county than any other official, including the president. Hayden indicated that he has directed a detective to investigate voting machines, the Associated Press reported.

The county's legal counsel has suggested that Hayden appeared to be "attempting to interfere with an election," after the sheriff questioned the use of ballot drop boxes and requested to have a deputy observe the counting of ballots.

Removal of sheriffs

Under Kansas law, sheriffs can be involuntarily removed from office through a recall vote or through a "quo warranto" proceeding. The amendment does not change how voters could recall a sheriff. But it does change who can initiate an ouster proceeding.

Local recalls require a petition signed by the equivalent of at least 40% of the people who voted in the last election for that office. That means if 1,000 votes were cast in the last election for a sheriff, then at least 400 registered voters would have to sign the petition to initiate a recall election. For the recall to succeed, a simple majority is needed.

Quo warranto proceedings can be used to oust local officials from office for misconduct, willful neglect, mental impairment or committing a crime.

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Currently, district and county attorneys have the power to initiate proceedings against local officials. They would cede that power to the attorney general with respect to sheriffs if the amendment passes.

Attorney General Derek Schmidt supports the amendment. He has said that election of sheriffs makes them accountable to the voters. He said that barring county attorneys from attempting to oust a sheriff is "an appropriate provision to ensure the independence of the sheriff from other elected officials in the county," and that the attorney general "would be capable of handling the rare case" of a sheriff's misconduct.

Easter said such a move would eliminate conflicts of interest, alleging that "conflicts have existed in the past on ouster proceedings conducted by a local elected attorney against a local elected sheriff."

This article originally appeared on Topeka Capital-Journal: Kansas election 2022 includes constitutional amendment on sheriffs