A welcome win for free speech and voters’ rights at the Kansas Supreme Court | Editorial

The Kansas Supreme Court on Friday made the right call to restore a constitutionality challenge to a state law that purports to prohibit impersonation of election officials.

The lawsuit followed the passage of House Bill 2183 into law in 2021, overriding a veto by Gov. Laura Kelly. The bill was a grab-bag of mostly unnecessary provisions to placate those who believed the “stop the steal” nonsense peddled by ex-President Donald Trump and his acolytes after he lost the 2020 election to Joe Biden.

As predicted, the poorly thought-out measure has thrown voter registration into chaos.

Nonprofit groups that routinely ran registration drives without incident for decades shelved the practice, because HB 2183 was so broadly drawn that it could easily criminalize innocent people for exercising their right to set up a card table and help fellow citizens get signed up to exercise their right to vote.

The suit challenging the constitutionality of HB 2183 was brought by four nonprofits that used to do registration drives: the League of Women Voters, the Kansas Appleseed Center for Law and Justice, the Topeka Independent Living Resource Center and Loud Light, which encourages civic participation among young people.

Bear in mind, it’s always been against the law to impersonate a government official of any sort. But the previous law made it a misdemeanor and required showing that a defendant intended to deceive.

HB 2183 went way beyond.

The 2021 law makes it a felony to do one of three things:

(1) Representing oneself as an election official;

(2) engaging in conduct that gives the appearance of being an election official; or

(3) engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official.

There’s nothing wrong with the first point.

We certainly agree people shouldn’t be walking around misrepresenting themselves as election officials. And felony prosecution should be an option, depending on how egregious the conduct is.

But the problem with HB 2183 lies in its second and third points.

Regarding point two, running a registration drive requires volunteers (or in some cases, persons paid by a party or campaign) to possess copies of, distribute and if necessary, answer questions about a government registration form. Is that “giving the appearance of being an election official?” Who can say?

And point three is even foggier, because it requires registration helpers to essentially mind-read the people they’re trying to help.

“Speech — that is, human communication — is a two-way street,” the Supreme Court opinion says. “But sometimes a listener may mistake the meaning intended by the speaker. This may be due to the imprecision of the speech itself. It may also arise from the unfamiliarity of the listener with the particular language, dialect, or culture and idioms of the speaker. Mistakes also at times result from just plain old unreasonableness or willfulness on the part of the listener.”

In short, people should be judged by what they say and do, not how others may perceive what they say and do.

The case got to the Supreme Court after the Court of Appeals rejected the four nonprofits groups’ standing to sue. Friday’s Supreme Court ruling reinstates the case and sent it back to the appellate court for further proceedings.

It doesn’t really need to be this way.

The Legislature made a mistake and wrote an overbroad statute. They can just as easily undo it.

Lawmakers will be back in session in Topeka early next month. We call on them to forgo the time and expense of further litigation defending the law they passed, and rewrite it to be clearly constitutional, not just maybe constitutional.