AG Derek Schmidt to counties: Preserve all election-related records

TOPEKA – (August 10, 2018) – Kansas Attorney General Derek Schmidt today instructed election and legal officials in all 105 counties to preserve any and all records related in any way to the primary election.

In a so-called “litigation hold” letter sent to county election officers and county legal counsel, Schmidt noted that litigation related to the close gubernatorial primary election appears reasonably likely and that persons involved in the election are therefore obligated to maintain all records that could be relevant to any potential litigation. The attorney general noted that at least one candidate has publicly raised the possibility of litigation so Schmidt thought it advisable to remind local officials that Kansas law requires preservation of election-related materials.

“Despite the unusual circumstances of this close gubernatorial election, I know all county election officials are focused intently on performing their duties in a manner that ensures confidence in the eventual outcome of the election,” Schmidt said. “To assist with that, I am issuing this reminder of their duty to maintain all potentially relevant records. This is a common step when litigation is anticipated. I suspect local officials already would have done this as a matter of course, but as the state’s chief legal officer, and because of the obvious statewide importance of any potential litigation related to this election, I felt it prudent to provide this clear guidance in a manner that is uniform statewide so there can be no confusion or misunderstanding.”

Schmidt noted that the duty to preserve records extends beyond ballots and poll books.

“No one should destroy any paper files, notes, or electronic data related in any way to the August 7 election,” he wrote. “All must be preserved. This demand applies to your county, its election officials, and staff. And it includes any platform on which relevant electronic data might reside – for example, county servers, laptop and desktop computers, iPads, third-party servers (like Hotmail and Gmail), smartphones, text messages, surveillance tapes, etc.”