An attorney representing a coalition of voting rights advocacy groups said the threat of prosecution was limiting work to engage voters in a critical election year. The law prohibits and penalizes “knowingly” engaging in “conduct that gives the appearance of being an election official” or “would cause another person to believe a person” is an election official. (Sherman Smith/Kansas Reflector)
TOPEKA — Voting rights attorneys battled Thursday in the Kansas Court of Appeals over the merits of a 2021 law that threatens felony prosecution for any activity that could be mistaken as the work of an election official.
Nonprofits including the League of Women Voters of Kansas, Kansas Appleseed, Loud Light and others sued the state before the law took effect July 1, halting voter registration drives and outreach efforts for fear of running afoul of the new provisions. Following a failed request for a temporary injunction blocking part of the law in September, the lawsuit continued with cases for and against House Bill 2183 and House Bill 2332.
While the nonprofits said they are unable to effectively conduct their business without the threat of prosecution, Bradley Schlozman, a Wichita attorney hired by the state to defend the law, said these groups were creating a concern that did not exist.
“If the statute is construed properly and in line with longstanding precedent, then everything else here is little more than noise,” Schlozman said. “Plaintiffs are essentially asking here for an advisory opinion because they won’t take yes for an answer. They want the court to say what defendants have already said, which is that what they’re doing is not illegal.”
But Hal Brewster, a Washington, D.C., attorney representing Kansas Appleseed, Loud Light and the Topeka Independent Living Resource Center, said there was plenty of reason for concern among volunteers that they could be prosecuted under the law. For one, he said there is no protection against subjective misunderstandings.
The law prohibits “knowingly” engaging in “conduct that gives the appearance of being an election official” or “would cause another person to believe a person” is an election official. Brewster argued the language would inevitably prove problematic, as volunteers are often mistaken for election officials.
“I don’t need to tell any of you right now that this year is a very consequential year in Kansas elections,” Brewster said. “You have the primary, the ballot measure on the constitutional issue of abortion, you have a governor up for election — If my clients are not allowed to go out and register and engage, this state is going to suffer.”
The GOP-controlled Legislature passed several election-related restrictions in response to false narratives about the integrity of the 2020 presidential election. House Bill 2183 penalizes Kansans for touching somebody else’s ballot, distributing ballots, helping someone turn in their ballot or altering the postmark on an advanced ballot.
Previously, impersonating an election official was a misdemeanor crime under state law. The new law makes it a felony with a punishment of up to 17 months in prison and a $100,000 fine.
Nonprofits are concerned the law will have a strong chilling effect on turnout for local races, which have the biggest effect on residents’ day-to-day lives and already experience low participation rates. Brewster said many groups use materials that carry the seal of a state or local election office, which opens the door for misunderstandings, confusion and prosecution.
He also pointed to an Aug. 2 press release from Attorney Derek Schmidt in which he stated he intends to prosecute under the law. But Schlozman dismissed the letter as a concern, arguing it was simply a statement that prosecutors should act within the scope of the law, not target those engaging in legal activity.
“What they’re alleging is that if even one eggshell, naïve citizen out there might misunderstand the real role that the plaintiffs and their members play, then the whole statute has to fail,” Schlozman said. “It also sort of ignores the discussion that we’ve had in that there has to be a consciousness of wrongdoing in these cases.”
Judge Kathryn Gardner said she would deliberate with colleagues and issue a written decision soon.
After the arguments, Teresa Woody, Kansas Appleseed litigation director, doubled down on concerns that even the threat of prosecution would limit the ability to engage with voters.
“Contrary to Defendants’ arguments that many Kansas voters can be unsophisticated and naïve, Kansas voters should be empowered and not fearful of repercussions for engaging in political speech,” Woody said.
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