Kansas Supreme Court Hears Lawsuit Over Voter Suppression Law
WASHINGTON, D.C. — 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.” In their amended petition, the pro-voting groups behind this lawsuit allege that the false representation provisions are both vague and “inherently subjective” since there is no way to tell whether individuals will mistakenly believe that members of civic and voter engagement organizations with whom they interact are “election officials.” They also argue that these pro-voting organizations are especially at risk under these provisions since many of the voter registration and engagement activities that they undertake often “overlap with actions that election officials may take.”
On July 15, 2022, the Kansas Court of Appeals affirmed a trial court’s decision denying the petitioners’ motion for a temporary injunction seeking to ban the enforcement of the false representation provision and wholly dismissed the plaintiffs’ claims against the provision, finding that the pro-voting organizations that brought lawsuit lacked standing (meaning capacity to sue). As a result, the false representation provisions of H.B. 2183, among others, currently remain in effect. In today’s oral argument, the Kansas Supreme Court heard from the parties over whether to affirm or reverse the lower court’s decision to dismiss the claims against these anti-voting provisions. 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.