Lawsuit brought by the League of Women Voters of Kansas, Loud Light, Kansas Appleseed and Topeka Independent Resource Center challenging the passage of two voter suppression laws, House Bill 2183 and House Bill 2332. The case claims that the laws — which criminalize individuals for giving voter assistance, limit ballot collection, restrict advocacy organizations from helping voters, impose a signature verification requirement and more — violate the Kansas Constitution by unduly burdening Kansans’ right to vote. The district court denied the plaintiffs’ motion for a partial temporary injunction, which sought to prohibit the enforcement of the provision that criminalizes the action of “knowingly misrepresenting” oneself as an elections official or engaging in election-related activity that “gives the appearance” of being an election official. The plaintiffs appealed the denial to the Kansas Court of Appeals, which affirmed the district court’s decision and dismissed the plaintiffs’ appeal regarding the false representation provisions of H.B. 2183 for lack of standing. On July 15, the plaintiffs appealed the Kansas Court of Appeals’ decision to the Kansas Supreme Court. As of right now, the provision criminalizing false representation of an election officials remains in effect.
After the appeal regarding the temporary injunction was filed, the district court dismissed most of the plaintiffs’ claims in the case. The plaintiffs have separately appealed this decision, specifically regarding the district court’s dismissal of the ballot collection and signature verification claims, to the Kansas Court of Appeals, where litigation is ongoing.
On Sept. 20, 2022, a three-judge panel of the Kansas Court of Appeals heard oral arguments regarding the plaintiffs’ appeal of a decision by the district court to dismiss their claims against two provisions of voter suppression law House Bill 2183. The first provision at issue is a ballot collection restriction, which limits the number of advance ballots (mail-in ballots cast before Election Day) that an individual may collect and deliver on behalf of voters to 10 ballots total and subjects those who violate this restriction to a misdemeanor punishable by jail time. The second provision at issue is a signature verification requirement that precludes election officials from counting advance ballots “unless the county election officer verifies that the signature of the person on the advance voting ballot envelope matches the signature on file in the county voter registration records.”
The court first heard from an attorney representing the plaintiffs (the League of Women Voters of Kansas, Loud Light, Kansas Appleseed, Topeka Independent Resource Center and three Kansas Voters) in the lawsuit. The attorney began by discussing the shortcomings of the signature verification requirement, noting that laypeople are especially ill-equipped to conduct accurate signature matching since they are not handwriting experts. The attorney added that there is a dearth of evidence pointing to issues with false signatures throughout the state’s 25 year history of absentee voting. The attorney stated that ballots identified as non-matches are highly likely to be legally cast and asserted that elderly, young and disabled voters, as well as voters whose first language is not English, are at a higher risk of having their ballots disqualified due to this signature verification requirement.
Subsequently, the attorney turned to discussing the ballot collection restriction. The attorney specified that the plaintiffs are not challenging all parts of this law — in particular, she stated that they do not challenge a restriction on the ability of candidates to collect and deliver ballots except on behalf of their close family members, nor do they challenge the law’s requirement that both the voter and collector sign an affidavit attesting that the collector did not exert any undue influence on the voter. However, the attorney reiterated that the plaintiffs do challenge the 10-ballot limit imposed by the law, since the state did not justify why it came up with this threshold (i.e., why is the 11th ballot collected considered illegal?).
The attorney then argued why she believed the court of appeals has jurisdiction and why the district improperly dismissed the plaintiffs’ claims against these two laws. She proceeded to address how the plaintiffs’ claims were rooted in the explicitly guaranteed right to vote prescribed by Article 5, Section 1 of the Kansas Constitution. She also mentioned that this section of the Kansas Constitution, which was amended in 1971, also refers to absentee voting and reflects the state’s long history of absentee voting, which is a right for all voters in the state. The attorney also argued that because the Kansas Constitution carves out a fundamental right to vote, the court should employ strict scrutiny and must ask whether these laws impede on the right to vote as well as whether the state has a compelling interest to impede the right to vote. The attorney conceded that while the state does have a compelling interest to prevent fraud, it does not do so in a way that advances that interest nor in a way that is narrowly tailored to that interest in its enactment of the signature matching requirement. She stated that, to the contrary, this law will result in the disqualification of lawfully cast ballots.
Next, the court heard from the attorney for the defendants, Kansas Secretary of State Scott Schwab (R) and Attorney General Derek Schmidt (R), who argued that the district court “acted properly” in dismissing the plaintiffs’ claims. The attorney claimed that the plaintiffs lacked standing since they are not at risk of “being injured” by the challenged provisions. The attorney also stated that the number of mismatched signatures within the state is quite small and that “every state in the Union has signature verification” (the attorney for the plaintiffs later clarified that this assertion is factually false).
The attorney then pivoted to discussing a provision of the Kansas Constitution (Article 5, Section 4) that addresses the eligibility of voters, which he claimed provides explicit instructions to the Legislature to adopt laws to ensure that only eligible voters can vote. In line with this reasoning, the attorney argued that the court should show “deference” to the Legislature when considering the challenged provisions. He claimed that the ballot collection restriction aims to “minimize the amount of undue influence placed on members of the community,” and provided the example of ballot collectors going into nursing homes and engaging in “ballot harvesting.” Furthermore, he argued that the plaintiffs’ attempt to “invalidate the entire regulatory regime…undermines public confidence in the integrity of the elections system.”
When asked by one of the judges whether Kansas’ rich history of voting rights should be considered, the attorney for the defendants responded by stating that he respectfully disagrees and that the state’s history is rooted in regulating voting vis a vis deference to election officials and the Legislature. The attorney closed out his argument by stating that the plaintiffs are wrong in advocating for the strict scrutiny standard and reiterated his contention that “we need to show deference to the legislature to the most significant degree” and prevent the “hamstringing [of] the legislature…and election officials.”
Finally, the attorney for the plaintiffs presented her closing statements in which she reiterated her arguments that the plaintiffs do indeed have standing and that the district court improperly dismissed the plaintiffs’ claims.
On Wednesday, Feb. 1, the Kansas Supreme Court heard oral argument regarding an appeal in a lawsuit challenging Kansas voter suppression law House Bill 2183 for violating the state constitution. Although the lawsuit challenges multiple provisions of H.B. 2183, the specific provisions at issue in this appeal — hereinafter referred to as the “false representation provisions” — make it a felony for an individual to knowingly “[r]epresent oneself as an election official, engage in conduct that gives the appearance of being an election official or engage in conduct that would cause another person to believe a person engaging in such conduct is an election official.”
The Kansas Supreme Court is comprised of seven justices, but one justice — Justice Daniel Biles — recused himself from today’s argument, meaning that only six of the justices will participate in deliberations and ultimately issue a decision on the appeal.
The attorney for the appellants — including the League of Women Voters of Kansas, the Kansas Appleseed Center for Law and Justice and the Topeka Independent Living Resource Center — opened the argument by asserting that the challenged false representation provisions are unconstitutional. The appellants’ attorney elaborated on this argument, stating that the challenged provisions are “unconstitutionally overbroad” because they render constitutionally protected conduct — namely free speech in the form of voter engagement activities — criminally punishable activities under H.B. 2183. In particular, the appellants’ attorney argued that the threat of criminal prosecution imposed by the false representation provisions “chill” the voter registration and engagement activities that the pro-voting appellant organizations regularly partake in. The appellants’ attorney added that “absent some indication that the [appellants’] conduct is actually trying to hurt voters, th[eir] action should not be impeded…The irony is that my clients are trying to help voters, not hurt them.” Furthermore, she stated that the false representation provisions impede on the appellants’ “[constitutionally] protected core activity…This law is saying ‘you are in the line of potential criminal prosecution if someone thinks you are an election official.’” The appellants’ attorney then turned to how the challenged provisions are read differently by various people, including county election officials, courts and voter engagement organizations, which further attests to how subjective, “vague” and “overbroad” the provisions are. The appellants’ attorney reiterated that the “appellants are not intentionally trying to mislead anyone” and concluded that “when you are legislating in a space where you are impeding on core [constitutional] conduct, you have to have some sort of reason to believe that the people engaged in this behavior are committing fraud, and there’s just nothing like that here.” Lastly, the appellants’ attorney argued that the Kansas Court of Appeals erred in its decision holding that the appellants lacked standing.
Next, the court heard from the attorney for the appellees — Kansas Secretary of State Scott Schwab (R) and Kansas Attorney General Derek Schmidt (R) — who began by claiming that “there is no basis for invalidating this duly enacted legislation” and the appellants “base their petition on total conjecture.” The appellees’ attorney proceeded to argue that the challenged false representation provisions are constitutional because the state has an interest in “avoiding confusion on behalf of voters.” One of the justices, Justice Evelyn Wilson, then posed the hypothetical wherein a person sends an official brochure from the Kansas secretary of state’s office to a voter. In reference to this hypothetical, Wilson asked the appellees’ attorney: “Why do I have to tell someone I am not the secretary of state…Don’t I have the right to send a flier?” Going further, Wilson suggested that the appellees’ position “is that I have committed a crime…because I did not actively disclose that I am not the secretary of state.” To this, the appellees’ attorney responded that “I think if you send something that has all of the hallmarks of an official mailing and has no…disclaimer, then I think that would be a violation of the statute, yes.” Wilson then replied by stating: “Because it has no disclaimer, that is a criminal act in your mind…Don’t you think that is pretty chilling?”
The justices then pivoted to asking the appellees’ attorney about whether the civic organizations that brought the lawsuit had standing . The appellees’ attorney stated that to have standing, there needs to be a “reasonableness about the [party’s] concern of liability.” To this, Justice Melissa Standridge responded that “the mere existence of the statute would cause a person…to refrain from engaging in that constitutionally protected speech or expression…to avoid prosecution…and don’t the appellants have affidavits saying people have mistaken” them for election officials? To this point, the appellees’ attorney echoed his prior contention that the state has a “substantial interest in protecting the public against certain types of misrepresentation.” Standridge continued to press the appellees’ attorney on this point, asserting that from the perspective of a person who may risk going to jail, the statute might be quite chilling. She also stated that the Kansas Court of Appeals “erroneously applied the overbreadth test” that is supposed to be used in the merits stage of a case and instead improperly applied it to determine the appellants’ standing. She clarified that the overbreadth test for standing (as opposed to the merits) entails assessing whether the “mere existence of a statute could cause a person to refrain from engaging in constitutionally protected speech or expression.” The appellees’ attorney continued to argue that the statute is constitutional and concluded that there needs to be “a greater degree of deference to the Legislature when they are adopting a statute” and “their purpose in enacting the statute was to avoid individuals from being misled…I think if [the statute] has a reasonableness component to it, then that…renders the statute valid.”
Finally, the court heard rebuttal from the appellants’ attorney, who reiterated that the challenged provisions are overbroad and therefore violate the Kansas Constitution. The appellants’ attorney also urged the court to recall the context in which voter suppression law H.B. 2183 was enacted — a climate in which election deniers as well as threats and harassment against election officials ran rampant. The appellants’ attorney underscored the point that the challenged provisions curtail the activities of voter engagement and civic organizations and make her clients feel “afraid.” The appellants’ attorney closed out her argument by asking the court to reverse the court of appeals’ decision and to direct the trial court to enter the temporary injunction prohibiting the enforcement of the false representation provisions.
Case Documents (trial court)
Case Documents (ks court of appeals)
Case Documents (KS Supreme court)