KS Supreme Court appears skeptical of law that prompted pause to voter registration drives

The Kansas Supreme Court appeared skeptical this week of a 2021 state law criminalizing “false representation” of an election official. Civic groups say the measure hampers voter registration efforts and is unconstitutional.

State lawmakers are now rushing to fix possible problems with the law before the high court potentially blocks its enforcement.

Republican lawmakers advanced the original measure in the aftermath of the 2020 election and false allegations of fraud by former President Donald Trump and his supporters. The current Kansas Supreme Court case could have broad implications for voting rights across the state.

Civic engagement groups, including Loud Light and the League of Women Voters of Kansas, challenged the law in court, arguing it places volunteers at risk of prosecution if any voter mistakenly believes they are an election worker and that it violates the First Amendment rights of volunteers. The groups have paused voter registration activities while the law is in effect.

During oral arguments before the Kansas Supreme Court on Tuesday, Bradley Schlozman, a private attorney representing Kansas in the case, acknowledged lawmakers had done a poor job crafting the legislation barring “false representation.”

But he said lawmakers meant to criminalize action that was intending to mislead voters, not any action that might simply be misinterpreted.

“I will acknowledge that this legislation did not represent the high water mark of legislative craftsmanship,” Schlozman said. “I think it can be read in a way that will ensure that person has sufficient criminal culpability.”

Justices were skeptical, suggesting in their questions that they believed the law might criminalize a broad swath of protected speech.

Chief Justice Marla Luckert, who was appointed by Republican Gov. Bill Graves, said the court had accepted as fact that someone may unreasonably assume a person conducting voter registration is an election official. Schlozman’s arguments, she said, didn’t grapple with that.

Justice Dan Biles, who was appointed by Democratic Gov. Kathleen Sebelius, noted that the law appeared to make it possible for a person to be arrested for registering people to vote only to have those charges dropped later on. He compared the language to attempting to crush an ant with an atomic bomb.

“That has tremendous chilling effect on the speech,” he said. “A lot of trouble to go to to find out that what you did was correct.”

The plaintiffs in the case agreed. “Every single day that goes by that the plaintiffs are under this threat is a harm not just to them but to the public,” said Elisabeth Frost, an attorney who represented the civic engagement groups.

But justices also asked whether a bill before the Kansas Legislature might render the entire issue moot.

Changing the law

Kansas Lawmakers are set to vote on a bill Thursday that eliminates language in Kansas statute criminalizing behavior that “gives the appearance” or “cause another person to believe” you are an election official. It replaces that language with a prohibition on conduct “with the intent to cause a person to believe” they are an election official.

Speaking about the bill on the House floor, Rep. Leah Howell, a Wichita Republican, said the new language added “clarity.”

They are also considering a variety of measures altering procedures for election audits and qualifications for poll workers as well as limiting in-person advance voting the day before elections. The Senate has contemplated more extreme legislation that would limit mail-in voting and ban ranked-choice voting in the state.

Any proposal that lawmakers pass this year could ultimately be affected by the lawsuit over the 2021 laws as justices weigh whether to uphold a lower court’s ruling that any restrictions to voting rights must overcome an extremely high legal bar to be upheld.

The “false representation” bill, originally introduced by Kansas Attorney General Kris Kobach’s Office, is aimed at resolving the very issue that caused the lawsuit. In written testimony last month, Deputy Attorney General Dan Burrows said the rewritten language aimed to prevent deliberately deceptive behavior while ensuring “innocent conduct” could continue.

During oral arguments Tuesday, Scholzman said the bill, if passed, would render the issue moot but Frost said it would simply infuse more confusion into an already bad situation.

Rep. Paul Waggoner, a Hutchinson Republican, said lawmakers were pushing the changes because the “false representation” law was still an open issue. “Let’s just go ahead and do something about it,” he said.

But opponents have criticized the effort for interrupting an ongoing case rather than let the courts do their work.

Rep. Brandon Woodard, a Lenexa Democrat, said that Kobach appeared likely to lose the election law case resulting in a preliminary injunction blocking enforcement of the law.

“I don’t think we should be doing legislation to bail out the attorney general who is continuing to show that he’s not a very good lawyer,” Woodard said.

The plaintiffs in the lawsuit testified to lawmakers that they appreciated the efforts to change the law. However, they said they were still broadly concerned that the new language was unclear and could continue to chill free speech.

“After all this, for the Legislature sort of in the final hour to do this is, it seems very unusual and bizarre because this could have been addressed earlier,” said Davis Hammet, president of Loud Light.