WASHINGTON, D.C. — 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 maintaining 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.