Kansas Supreme Court revives challenge to election crime law brought by civic groups

The Kansas Supreme Court on Friday revived a lawsuit by civic groups challenging a state law criminalizing “false representation” of an election official, but didn’t rule on the law itself.

The League of Women Voters of Kansas, Loud Light and other groups that register voters are fighting to overturn the 2021 law, which the Republican-controlled Legislature passed in the wake of false conspiracy theories and doubts about the 2020 presidential election.

The state Supreme Court on Friday morning reversed a decision by the Kansas Court of Appeals dismissing the challenge and in its opinion sent the case back to the appeals court. But two hours later, the Supreme Court released an order signed by Chief Justice Marla Luckert pausing the directive in the opinion sending the case back.

Luckert wrote that the court instead intends to transfer the case back to itself — a signal it may rule on the law without allowing the Court of Appeals to rule first. She cited a state law that allows the Supreme Court to take control of cases in the Court of Appeals.

Luckert’s order potentially accelerates the timeline on reaching a final decision in the case. An earlier decision would provide clarity on the law ahead of ramped-up voter registration efforts ahead of the 2024 primary and general elections.

The court’s opinion, by Justice Caleb Stegall, its most conservative member, said that when the Legislature criminalizes speech but doesn’t provide a high degree of detail showing the speech isn’t constitutionally protected, “the law is sufficiently unclear” to allow lawsuits against it before it’s enforced. The decision came with no dissents.

The election law makes it a felony to falsely hold yourself out as an election official or engage in conduct that gives the appearance of being an election official. Civic groups say the law casts a pall over voter registration efforts and violates their First Amendment rights.

Davis Hammet, president of Loud Light, said in a statement that the state has been “gaslighting” Kansans about the threat posed by its own laws.

“We hope this unanimous opinion from the Kansas Supreme Court makes our state legislators craft laws with more care and respect for our constitutional rights,” Hammet said.

Stegall emphasized that the court wasn’t making a broader ruling on the constitutionality of the law itself. “We caution, however, that our holding today does not pronounce any definitive interpretation or construction of” the false representation law, he wrote.

But Stegall’s opinion also signaled that the court appears ready to strike down or limit the law because of the possibility that civic groups could be prosecuted for truthful statements that are misinterpreted.

“The statute simply does not provide clarity that truthful speech which generates an innocent or unreasonable listener mistake is outside of its scope,” Stegall wrote.