State of Kansas

Kansas Voter Suppression Law Challenge (LWV)

League of Women Voters of Kansas v. Schwab

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 ā€” which criminalize individuals for giving voter assistance, limit ballot collection, restrict advocacy organizations from helping voters, impose a signature verification requirement and more ā€” violate the Kansas Constitution by unduly burdening Kansansā€™ right to vote. In March 2022, the plaintiffs voluntarily dismissed their claims against H.B. 2332. The legal challenges to three provisions of H.B. 2183 remain ongoing.

False Representation Provision

In October 2021, the trial court denied the plaintiffs’ motion for a partial temporary injunction, which sought to prohibit the enforcement of the H.B. 2183’s “false representation provision.” This provision 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. On Dec. 15, 2023, the Kansas Supreme Court held that the plaintiffs have standing, thereby reversing the Kansas Court of Appeals’ dismissal. The state Supreme Court sent the case back down to the Kansas Court of Appeals for further litigation on the merits. The state Supreme Court then transferred the claims regarding the false representation provisions back to the state Supreme Court.

Ballot Collection and Signature Verification Provisions

After the court denied the plaintiffs’ motion for a temporary injunction regarding the false representation provision, the district court dismissed most of the plaintiffs’ other claims in the case in an April 2022 order. The plaintiffs 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. On March 17, 2023, the Kansas Court of Appeals reversed the trial court’s decision dismissing the plaintiffs’ claims against the ballot collection and signature verification claims, thus allowing litigation regarding these two provisions to continue in the trial court.

On April 5, 2023, the defendants appealed this decision to the Kansas Supreme Court. On June 24, 2023, the Kansas Supreme Court agreed to hear the defendants’ appeal of the Kansas Court of Appeals’ decision that allowed the plaintiffs’ ballot collection and signature verification claims to proceed.

On Jan. 19, 2024, the state Supreme Court consolidated the appeal regarding the ballot collection and signature verification provisions with the appeal regarding the false representation of an election official provisions. Oral argument was held on Feb. 20, 2024. On May 31, the state Supreme Court allowed the false representation and signature verification provisions to continue in the trial court, but affirmed the dismissal of the ballot collection provision.

STATUS: On May 31, 2024, Kansas Supreme Court remanded the false representation and signature verification provisions back to the trial court, but affirmed the trial court’s dismissal of the ballot collection provision. The court held that the false representation is likely unconstitutional. Litigation on the remaining two claims is ongoing in the trial court.

Courtroom Updates

On Sept. 20, 2022, a three-judge panel of the Kansas Court of Appeals heard oral arguments regarding the plaintiffsā€™ 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 ā€œunless 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.ā€ 

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 stateā€™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 ā€” 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 lawā€™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 plaintiffsā€™ claims against these two laws. She proceeded to address how the plaintiffsā€™ 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 stateā€™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 ā€œacted properlyā€ in dismissing the plaintiffsā€™ claims. The attorney claimed that the plaintiffs lacked standing since they are not at risk of ā€œbeing injuredā€ by the challenged provisions. The attorney also stated that the number of mismatched signatures within the state is quite small and that ā€œevery state in the Union has signature verificationā€ (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 ā€œdeferenceā€ to the Legislature when considering the challenged provisions. He claimed that the ballot collection restriction aims to ā€œminimize the amount of undue influence placed on members of the community,ā€ and provided the example of ballot collectors going into nursing homes and engaging in ā€œballot harvesting.ā€ Furthermore, he argued that the plaintiffsā€™ attempt to ā€œinvalidate the entire regulatory regimeā€¦undermines public confidence in the integrity of the elections system.ā€ 

When asked by one of the judges whether Kansasā€™ rich history of voting rights should be considered, the attorney for the defendants responded by stating that he respectfully disagrees and that the stateā€™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 ā€œwe need to show deference to the legislature to the most significant degreeā€ and prevent the ā€œhamstringing [of] the legislatureā€¦and election officials.ā€

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 ā€” hereinafter referred to as the ā€œfalse representation provisionsā€ ā€” make it a felony for an individual to knowingly ā€œ[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.ā€

The Kansas Supreme Court is comprised of seven justices, but one justice ā€” Justice Daniel Biles ā€” recused himself from todayā€™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 ā€” including the League of Women Voters of Kansas, the Kansas Appleseed Center for Law and Justice and the Topeka Independent Living Resource Center ā€” opened the argument by asserting that the challenged false representation provisions are unconstitutional. The appellantsā€™ attorney elaborated on this argument, stating that the challenged provisions are ā€œunconstitutionally overbroadā€ because they render constitutionally protected conduct ā€” namely free speech in the form of voter engagement activities ā€” criminally punishable activities under H.B. 2183. In particular, the appellantsā€™ attorney argued that the threat of criminal prosecution imposed by the false representation provisions ā€œchillā€ the voter registration and engagement activities that the pro-voting appellant organizations regularly partake in. The appellantsā€™ attorney added that ā€œabsent some indication that the [appellantsā€™] conduct is actually trying to hurt voters, th[eir] action should not be impededā€¦The irony is that my clients are trying to help voters, not hurt them.ā€ Furthermore, she stated that the false representation provisions impede on the appellantsā€™ ā€œ[constitutionally] protected core activityā€¦This law is saying ā€˜you are in the line of potential criminal prosecution if someone thinks you are an election official.ā€™ā€ The appellantsā€™ 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, ā€œvagueā€ and ā€œoverbroadā€ the provisions are. The appellantsā€™ attorney reiterated that the ā€œappellants are not intentionally trying to mislead anyoneā€ and concluded that ā€œwhen 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 thereā€™s just nothing like that here.ā€ Lastly, the appellantsā€™ 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 ā€” Kansas Secretary of State Scott Schwab (R) and Kansas Attorney General Derek Schmidt (R) ā€” who began by claiming that ā€œthere is no basis for invalidating this duly enacted legislationā€ and the appellants ā€œbase their petition on total conjecture.ā€ The appelleesā€™ attorney proceeded to argue that the challenged false representation provisions are constitutional because the state has an interest in ā€œavoiding confusion on behalf of voters.ā€ One of the justices, Justice Evelyn Wilson, then posed the hypothetical wherein a person sends an official brochure from the Kansas secretary of stateā€™s office to a voter. In reference to this hypothetical, Wilson asked the appelleesā€™ attorney: ā€œWhy do I have to tell someone I am not the secretary of stateā€¦Donā€™t I have the right to send a flier?ā€ Going further, Wilson suggested that the appelleesā€™ position ā€œis that I have committed a crimeā€¦because I did not actively disclose that I am not the secretary of state.ā€ To this, the appelleesā€™ attorney responded that ā€œI think if you send something that has all of the hallmarks of an official mailing and has noā€¦disclaimer, then I think that would be a violation of the statute, yes.ā€ Wilson then replied by stating: ā€œBecause it has no disclaimer, that is a criminal act in your mindā€¦Donā€™t you think that is pretty chilling?ā€ 

The justices then pivoted to asking the appelleesā€™ attorney about whether the civic organizations that brought the lawsuit had standing. The appelleesā€™ attorney stated that to have standing, there needs to be a ā€œreasonableness about the [partyā€™s] concern of liability.ā€ To this, Justice Melissa Standridge responded that ā€œthe mere existence of the statute would cause a personā€¦to refrain from engaging in that constitutionally protected speech or expressionā€¦to avoid prosecutionā€¦and donā€™t the appellants have affidavits saying people have mistakenā€ them for election officials? To this point, the appelleesā€™ attorney echoed his prior contention that the state has a ā€œsubstantial interest in protecting the public against certain types of misrepresentation.ā€ Standridge continued to press the appelleesā€™ 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 ā€œerroneously applied the overbreadth testā€ that is supposed to be used in the merits stage of a case and instead improperly applied it to determine the appellantsā€™ standing. She clarified that the overbreadth test for standing (as opposed to the merits) entails assessing whether the ā€œmere existence of a statute could cause a person to refrain from engaging in constitutionally protected speech or expression.ā€ The appelleesā€™ attorney continued to argue that the statute is constitutional and concluded that there needs to be ā€œa greater degree of deference to the Legislature when they are adopting a statuteā€ and ā€œtheir purpose in enacting the statute was to avoid individuals from being misledā€¦I think if [the statute] has a reasonableness component to it, then thatā€¦renders the statute valid.ā€ 

Finally, the court heard rebuttal from the appellantsā€™ attorney, who reiterated that the challenged provisions are overbroad and therefore violate the Kansas Constitution. The appellantsā€™ attorney also urged the court to recall the context in which voter suppression law H.B. 2183 was enacted ā€” a climate in which election deniers as well as threats and harassment against election officials ran rampant. The appellantsā€™ attorney underscored the point that the challenged provisions curtail the activities of voter engagement and civic organizations and make her clients feel ā€œafraid.ā€ The appellantsā€™ attorney closed out her argument by asking the court to reverse the court of appealsā€™ 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)

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