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How a ‘stop the steal’ could roil Kansas elections

legislative-war-imge.jpg
Kansas State Historical Society
Armed Republicans on the steps of the state Capitol during the legislative war of 1893.

A growing reluctance to accept official election results threatens to make the end of election season in Kansas more chaotic than it’s been in 130 years. Here’s what a worst-case scenario would look like and the perfect storm that could make it happen.

In 1892, Kansas held a legislative election – and both sides claimed victory.

At that point in the state’s history, the two leading contenders for power in Topeka were the Republican and Populist parties – and the competition between them was fierce. “There never was a time after the slavery question was settled, when the crusading spirit was so violent and pronounced,” William Macferran Jr. wrote for the Shawnee County Historical Society in 1952.

Lorenzo D. Lewelling, a Populist, won the governor’s race – and the party had won the Kansas Senate two years earlier. But both the Populists and Republicans said they’d won the Kansas House. And when the next legislative session started early in 1893, both sides showed up to claim their place. They each elected a speaker of the House and started passing bills. It was not a situation that could be sustained for long.

It wasn’t. In February of that year, the Populists barricaded themselves in the House chamber. Republicans led by Speaker George L. Douglass bashed their way into the room with a sledgehammer. (The sledgehammer can be seen among the ground floor exhibits at the Kansas Capitol Visitor Center.) After three days, Lewelling negotiated an end to the standoff with Douglass, and eventually the Kansas Supreme Court ruled in favor of the Republicans. As quickly as it had begun, the Legislative War of 1893 was over.

While Kansas politics can be fractious, the state’s elections have mostly run smoothly in the 130 years since: One side wins, the other side loses, and everybody moves on until the next election.

But what if that wasn’t the case?

In post-Jan. 6 America, conspiracy theories and a reluctance to accept official election results have become commonplace. And it’s not just national elections – state and local elections across the country have come under fire. Kansas is no exception.

Consider:

  • In Johnson County, Sheriff Calvin Hayden has been investigating the results of the 2020 election in one of the few Kansas locales that went for Joe Biden, claiming he had received 200 tips that fraud had been committed. A records request by Midwest Newsroom found just one such tip. “President Trump did not carry our county. First time since 1914 that Johnson County didn’t vote Republican,” Hayden told a gathering of “constitutional sheriffs” over the summer in Las Vegas. “Yeah. So it’s kind of interesting.” As of this writing, the investigation was still ongoing.
  • In the Aug. 2 primary election, Kansans rejected the “Value Them Both” abortion amendment by nearly 20 percentage points – but anti-abortion activists Mark Gietzen of Wichita and Melissa Leavitt of Colby provided credit cards to pay the six-figure cost of recounting ballots in nine counties, including Sedgwick and Johnson counties. The recount narrowed the margin of defeat by just 63 votes. But Gietzen, at least, is continuing to challenge the results. “Every election, every race in the primary is suspect,” he said in September. “It just makes me want to pull my hair out.”
  • And in September, a half-dozen Kansans (including Leavitt) filed a federal lawsuit against Gov. Laura Kelly, Attorney General Derek Schmidt, Secretary of State Scott Schwab and Director of Elections Bryan Caskey, challenging the results of the 2020 election – referring to President Joe Biden as “the alleged winner of the election” –  and asking a judge to order that the state end the use of electronic voting machines in this November’s election and conduct an “all paper ballot election” instead. (A judge rejected the suit).

“Simply ‘saying’ the elections are fair, free of fraud and transparent is not the same as ‘proving’ they are indeed as you say,” the group said in the suit.

All of this leads some observers to contemplate – and fear – the possibility that the Sunflower State might be on the verge of its own electoral crisis. Is Kansas ripe for its own “Stop the Steal” campaign?

“I don’t think it will be quite as large or intense as what we saw in 2020 at the federal level,” says Alexandra Middlewood, assistant professor of political science at Wichita State University, “though I do think that there is absolutely some foundation for that to happen here in Kansas at the state level.”

An electoral tinderbox

It’s not difficult in the current environment to sketch out a scenario in which the integrity of Kansas elections could be thrown into question. Here’s what it might look like:

There is already a federal lawsuit targeting electronic voting machines, mail-in ballots and drop boxes. Imagine then there’s a historically close high-profile race on the ballot. Perhaps Kansas gets the general election equivalent of the 2018 Republican primary between Kris Kobach and then-Gov. Jeff Colyer, where a razor-thin margin of a few hundred votes separates the candidates for governor or attorney general and it takes a week to sort out the winner.

In a few counties, staffing shortages and limited polling locations result in a larger than usual number of voters getting stuck in line after the official end of the voting day at 7 p.m. By law, voters who are already in line can remain there to vote. But what if someone makes a well-intentioned mistake? During the August primary, some voters in Maize were instructed, incorrectly, to go to a different polling location.

Let’s say there’s also a series of small mishaps in a handful of Kansas counties. One county initially misreports results that flip votes from the county’s winner to the loser. Another few submit incomplete results that don’t get corrected until the next morning. A county clerk mistakenly gives the wrong instructions to voters, meaning re-votes could be required in a few races. Another county gets overwhelmed by an unexpected onslaught of paper ballots, and it doesn’t finish tabulating and posting its results until the afternoon after Election Day.

Again, none of this would be unprecedented. During the August primary, an error involving a thumb drive led Cherokee County to initially misreport results. During the 2020 election, the Rice County clerk mistakenly instructed voters to pick three city council members, instead of two, and also failed to send school district election ballots to district voters in a neighboring county. Two years before that, overwhelmed Johnson County election officials were late reporting their results. In each case, the errors were corrected – in the Rice County case, new elections were ordered – but such missteps can provide fodder for talk of conspiracy and fraud.

In the context of the election system, such miscues tend to reflect just a small percentage of the overall vote and can be fixed before the results get finalized. But they still feed into the unofficial tallies on election night, which are “done in response to the intense interest by the media, candidates and public in knowing the results of the election,” the secretary of state’s office says in its official election standards. “It is important to note that results tabulated and reported on election night are unofficial.”

But that wouldn’t stop a candidate leading even by a small amount that evening from declaring a premature victory, as then-President Donald Trump did in 2020. Or perhaps the candidate’s most fervent supporters take matters into their own hands and declare victory on their own, only to become angry as that lead disappears in the days that follow. Misinformation and disinformation begins spreading on social media, sparking protests and increased scrutiny of election officials, resulting in a series of tense interactions between them and a “stop the steal” contingent. The next governor or attorney general takes office under a cloud of protest and litigation that overshadows their victory and invites ongoing scrutiny by their political opponents.

Election night outcomes can flip because the counting doesn’t end that evening. Mail-in ballots, which must be postmarked by Election Day, will still be coming in. Election officials must accept those ballots to be counted up to three days after Election Day. And it isn’t until canvassing by county-level officials, which takes place no later than 13 days after Election Day, that decisions are made about whether to count provisional and damaged ballots. Those ballots rarely affect the outcomes of statewide races, but they aren’t insubstantial either. About 29,000 provisional ballots were cast in 2018.

The chance of all these factors hitting at once – an extremely close race, some small vote-counting mishaps, a premature push to declare victory, mail-in and provisional ballots making a difference, and a sustained effort by a candidate or the candidate’s supporters to cast doubt or overturn official results – seems remote. But even a less dramatic turn of events could make it hard for duly elected candidates to take office, and they could face questions about their legitimacy for years to come.

The election process depends on people – candidates, voters and the public – accepting the results as being free and fair. Will that continue to be the case?

Rough business

Even in the best of times, running an election in Kansas is hard work.

The challenges “used to be administrative,” says Tabitha Lehman, a Republican former Sedgwick County election commissioner who now works as a consultant. “Then you had to become a cybersecurity expert. Now it’s all those things, but you have to have mental fortitude to deal with the allegations and distrust.” Those challenges aren’t always from the right – nearly a decade ago, a Wichita State mathematician sued to obtain election records for evidence of voting machine anomalies she said favored Republicans. (The suit failed.)

Still, Lehman says, local election officials were trusted and respected in their communities. “That’s kind of changed.”

One impetus for the change, of course, was Trump’s false claim of having had the 2020 election stolen from him. Kansas might have seemed an odd place for Trump’s allegations and conspiracy theories to take root. Yes, the state is famously, overwhelmingly Republican, but it is also the case that Trump won the state’s electoral votes in both 2016 and 2020, just as every GOP presidential candidate had for decades going back to the 1960s. There was nothing here to be stolen from Trump that he didn’t already possess.

“You see in Kansas he did win,” Lehman says. “But we still have that distrust and seeds of doubt being put in there.”

Still, the distrust that Lehman sees could set the stage for some close state races in this November’s election. One late-September poll for the campaign between Kelly, a Democrat, and Schmidt, her Republican challenger, showed Kelly leading by just two points.

“I think it’s certainly very possible – and if Laura Kelly wins, probable – that that (stolen election) rhetoric comes out,” says Patrick Miller, associate professor of political science at the University of Kansas. He added: “There’s a lot of average Republicans out there who thoroughly believe that our elections in this state are fraudulent.”

Those fears are almost certainly overblown. There might be a few isolated cases of mistaken or criminal voting, and the occasional error here or there, experts say – but there almost certainly won’t be enough voter fraud to change November’s election one way or the other.

“Does it exist? Yes. Has it happened in Kansas? Yes,” Miller says. “It is typically caught to the extent that we are aware of it, given the safeguards that we have and the auditing around elections. It is not something that tips election outcomes.”

The ingredients

What, then, would a state-level Stop the Steal campaign look like?

It’s primed to come from the right: It’s not that Democrats aren’t inclined to complain about election results. John Kerry’s loss of Ohio during the 2004 presidential election was grist for conspiracy theories on the left, after all, and more recently there were national grumbles of a rigged primary when Bernie Sanders lost the Democratic presidential nomination to Hillary Clinton in 2016.

But the cries of “election fraud” come mostly from within the GOP these days. (Although a Texas Democrat has made baseless allegations as well.) It’s not just Trump. During the 2021 gubernatorial recall election in California, for example, the campaign of Republican candidate Larry Elder briefly raised the specter of fraud before he conceded the race overwhelmingly won by Democrat Gavin Newsom. And in late 2021, an NPR/PBS NewsHour/Marist poll found that just 60% of Republican voters nationwide trusted their state and local governments to conduct “fair and accurate” elections.

“I think certainly for that kind of Trump element in the Republican Party, claiming that an election was stolen is certainly becoming a more common thing when you lose,” Miller says. “Now, what’s difficult to discern is how much they actually believe, and their followers believe it, versus it’s just a new way of not conceding.”

But Republicans have incentives to defend the system. In other states this fall, GOP candidates running for secretary of state – or similar elections-oversight positions – have widely promised to crack down on alleged fraud they say disadvantages Republican candidates. But Schwab is an incumbent: It’s hard to decry the system and oversee it at the same time. What’s more, Schwab has spent recent months touting his role in passing a new election security law that strengthens cybersecurity requirements for voting machines, introduces new audits into the process, requires watermarks on ballots and establishes a new state standard for chain of custody procedures to ensure the security of those ballots as they’re transferred from the polls to the locations where they’re counted.

“Kansas has been recognized as a leading state in the nation for its election integrity,” Schwab said in a September letter to an angry constituent challenging the August election results. He also said: “As secretary of state, it is my top priority to ensure that Kansas elections are secure and safe.”

All of which means he’s not a good candidate to join challenges to the election results. “I don’t really see him as being that person, especially because he’s going to be secretary of state during this election,” Miller says. “I don’t really see him as saying, ‘Hey, I oversaw a fraudulent election.’”

It will be fueled by social media ...
“Social media can be really great for getting messages about politics and getting involved and registering to vote out there,” says Wichita State’s Middlewood. “But it also allows for myth and disinformation to spread really with the push of a button. And when people aren’t involved in politics, they just see what they see on the internet or they listen to whatever their political pundit of choice is telling them. And they really don’t question it, because they don’t have that connection to the political process in the same way that citizens used to.”

… and by distrust of government. The people who run local elections “might be your neighbors and friends,” says Miller, “but just as a concept of bureaucrats and government officials, we don’t want to trust them.”

It would probably involve court challenges to county-level results. “State law provides the process for an election contest, which must be done through the courts,” Whitney Tempel, Schwab’s spokesperson, said in an email. In the absence of any evidence of widespread fraud, though, such challenges might be tough to pull off. “I mean, if you’re going to go into court to stop counties from … certifying, finalizing their ballots, you have to have some evidence of wrongdoing which generally can’t be produced in response to these allegations,” Miller says. There might be lawsuits to challenge election results, “but whether the courts take that seriously, I’m not sure.”

And maybe – hopefully not, but still – there could be the threat of violence. The memory of Jan. 6 will loom large over this and future elections. If people think the election has been stolen from them, they’ll be angry. There’s no telling how some of them might choose to direct that anger. “I would like to tell you that no, I don’t think we’re going to have political violence, but I would be lying to you if that’s what I said,” Middlewood says. She adds: “I would like to think that it wouldn’t happen, and I would hope that it wouldn’t happen. I don’t feel comfortable saying that it’s not a possibility.”

Miller shared Middlewood’s concerns about the possibilities of election-related violence, but he downplayed the likelihood. “Do I feel like people are going to start shooting each other in Kansas over the gubernatorial election? No.”

In the end, Miller says, it would be very difficult to overturn an election. “Like, there are some things that I could see in theory that could be done (to challenge the results) but in practice, I’m not sure how practical they actually are,” he says. “Once you exhaust those options, however unlikely they are, what comes next? The Legislature doesn’t have any role in certifying the governor. They could always say that they don’t recognize the governor as legitimate, but OK, so what?”

Then again, election challenges aren’t just about the elections, says Travis Crum, an elections expert at Washington University in St. Louis. The point “is not to legally overturn elections,” he says. “It is to sow doubt and make it harder for winners of elections to govern and to bring people together.”

How to stop 'Stop the Steal'

The experts who spoke to The Journal emphasized that all of this is hypothetical. It might happen – and the scenario they describe is backed by trends and events – but also: It might not. “I do think that it’s worth acknowledging that this is also a worst-case scenario for all of this to happen,” Miller says.

Both gubernatorial candidates, meanwhile, say they believe Kansas elections are trustworthy.

Kelly’s campaign didn’t directly respond to questions about possible preparations for election fraud claims in the November election. “Kansas’ elections are safe and secure – even Republican Secretary of State Scott Schwab said (he) agrees,” Madison Andrus, a spokesperson for the Kelly campaign, said in an email.

Schmidt’s campaign did not acknowledge inquiries by The Journal. But CJ Grover, Schmidt’s campaign manager, told The Kansas City Star in September that “of course” the attorney general would accept the election results. 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 driver’s license numbers to obtain mail ballots, and restrictions on ballot harvesting,” Grover said.

In Johnson County, a spokesperson for Sheriff Hayden also declined to comment on the forthcoming election. Neither would Gietzen – still in the midst of challenging the primary election – speculate on what might happen in the next.

“No, I don’t have a crystal ball,” he said. “I don’t know what’s going to happen.”

Lehman, the former Sedgwick County election commissioner, says Kansas elections should be the pride of the state. “Kansas has a really good process,” she says. “It’s balanced – secure but accessible.”

But she’s worried that court challenges and other forms of backlash will make it harder to get the job done. “We already can’t get enough poll workers,” Lehman says. “If we can’t trust the process and keep delegitimizing it, and harping on things that are not true, we are setting ourselves up for the disenfranchisement of voters.”

Miller, meanwhile, says the attacks on elections will continue as long as some candidates – and their allies among political activists and in ideological media outlets – continue to promote myths.

“When those people feel that there is a benefit to perpetuating lies about election fraud and if they’re not punished for doing it, then they’re going to keep doing it, right?” he says, and added: “For those of us who are not as much the eager audience for the outrage, victim politics, I think there is a burden to step up more, to care about politics more, to pay attention more, to vote more than you do, especially in primaries, because I’m not sure what other check there is in our political system on that.”

But will that happen? At the moment, American democracy feels more fragile than at any time since the turbulence of the 1960s and 1970s. Kansas might not be the exception to the trends.

“If we have elections where people don’t believe those results – despite there not being any evidence of fraud – what does that mean for the state of democracy in Kansas or the state of democracy in the United States?” Middlewood asks.

“That isn’t really something that we as a citizenry have figured out yet. And the more that we continue to deny election results, for example, the harder that’s going to get.”

This story was originally published by the Kansas Leadership Center's Journal as part of the Wichita Journalism Collaborative, a partnership of 10 media partners, including KMUW.