Conservative groups back Kansas appeal of ruling that mail ballot law was unconstitutional

Conservative legal groups are backing Kansas government officials in appealing a federal court ruling that a new election law related to mail ballots is unconstitutional.

The election law, House Bill 2332, was passed by the Republican-controlled Legislature in 2021 over Democratic Gov. Laura Kelly's veto. Among its provisions was a ban on mailing voters a pre-filled application for a mail ballot.

VoteAmerica and the Voter Participation Center sued, and U.S. District Court Judge Kathryn Vratil ruled in May that the law unconstitutionally infringed on their First Amendment rights to speech and association.

Kansas Secretary of State Scott Schwab and Attorney General Kris Kobach, as well as Johnson County District Attorney Stephen Howe, appealed to the 10th U.S. Circuit Court of Appeals in June and filed their brief July 27.

VoteAmerica and the Voter Participation Center haven't yet filed their brief, which has an Aug. 24 deadline.

"The Voter Participation Center is dedicated to helping Kansas voters participate in democracy," said Tom Lopach, CEO of the Voter Participation Center. "The judge who ruled on House Bill 2332 got it right, and realizes that our only aim is to help eligible Kansas citizens vote by mail. We look forward to continuing to work on behalf of Kansas voters and to protect them from undue burdens at the ballot box."

Four conservative groups back Kansas Republicans

Schwab, Kobach and Howe have received support in the appellate court from amicus curiae briefs of four conservative groups that have been involved in election law litigation.

"Kansans are alarmed when they receive election mail from third-parties they have never heard of that has their name and personal info already filled-in, too often with errors," said Derek Lyons, president and CEO of Restoring Integrity and Trust in Elections. "Kansas is well within its rights to end this practice, which is unquestionably harmful to the orderly administration of elections."

The Foundation for Government Accountability said its partner organization, Opportunity Solutions Project, helped pass the bill.

"This commonsense reform is being attacked by legal activists seeking to undermine safe, secure elections," said Ryan Young, an FGA legal fellow. "FGA is pushing back alongside elected leaders in Kansas because good law is worth defending and the integrity of our elections is worth fighting for."

Additional briefs have been filed by the Honest Elections Project and the Public Interest Legal Foundation.

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At issues is the second sentence of K.S.A. 25-1122(k)(2).

The law makes it a misdemeanor crime for anyone who isn't an election official to mail an unsolicited advance mail ballot application to a voter if that application is pre-filled with any personal information, such as the voter's name and address. Vratil struck down that portion of the law.

Schwab and Kobach aren't appealing a separate provision of the law, which prohibits out-of-state entities from sending blank applications to Kansas voters. The state agreed to a permanent injunction against that part.

They also stipulated that VoteAmerica's activities didn't run afoul of the disputed law because they sent pre-filled applications only after a voter requested one through their website.

Schwab, Kobach and Howe, who are represented by the Hinkle Law Firm, argue the ban on third parties sending pre-filled advance ballot applications to voters isn't unconstitutional.

They say the law doesn't implicate First Amendment rights and strict scrutiny shouldn't be applied. They argue that filling out an application isn't speech, and even if it were, it is the voter's speech, not the Voter Participation Center's.

"At the heart of VPC's claims is its belief that it has a First Amendment right to fill out someone else's advance ballot application," they argue. "No such right exists."

Schwab, Kobach and Howe argue on appeal that the state has legitimate interests in "avoiding voter confusion, facilitating orderly and efficient election administration, enhancing public confidence in the electoral process, and deterring voter fraud."

While Vratil largely agreed those are state interests, "These rationales are not a part of the Legislative Record for HB 2332." While neutral testimony from the Secretary of State's Office discussed incomplete and duplicate applications, the office didn't mention pre-filled applications.

Likewise, testimony from bill sponsor Rep. John Toplikar, R-Olathe, didn't address pre-filled applications.

"Defendants have presented no evidence of voter fraud effectuated through advance mail voting or otherwise," Vratil wrote. And even if there were an election fraud problem due to pre-filled applications, the law "does nothing to address this alleged issue."

Did pre-filled advance ballot application cause more harm than good?

The Voter Participation Center mailed partially pre-filled advance ballot applications to about 500,000 Kansas voters for the 2020 election.

The state argues "there were serious quality control issues" — due in-part to using months-old voter registration data from the state — and those inaccuracies plus duplicate applications caused difficulties for election officials.

"These actions triggered substantial anger and confusion and wreaked havoc on election administration in numerous counties," Schwab and Kobach argue.

Shawnee County Election Commissioner Andrew Howell "recounted that these inaccurate and duplicate applications resulted in calls, letters, e-mails, and in-office visits from voters expressing anger, confusion, and frustration at what they had received from VPC," Schwab and Kobach said.

Vratil acknowledged that, but noted: "Howell testified, however, that he does not believe voters were necessarily confused and frustrated because they received pre-filled applications. Rather, he believes that voters erroneously assumed that the county had mailed the pre-filled ballot applications and were frustrated at the purported incompetency of his election office."

Schwab and Kobach also pointed to testimony from Ford County Election Clerk Debbie Cox about errors and duplicates causing inefficiencies and confusion. They argued that "VPC's activities made life far more difficult for Kansas election officials."

But Vratil pointed to Cox's testimony that pre-filled applications could also increase efficiency, that Douglas County Elections Director Jamie Shew testified that he preferred pre-filled applications and that Johnson County sent pre-filled applications to its voters because it was easier on the voter and election officials.

"The record suggests that on balance, such activity is more helpful than harmful to overburdened elections officials," Vratil wrote.

Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jtidd@gannett.com. Follow him on Twitter @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: Kris Kobach, Scott Schwab appeal ruling against Kansas mail ballot law