U.S. District Court drops gavel on Kansas’ unconstitutional attack of advance mail-in voting
Latest ruling crumbles key part of 2021 law inspired by false election fraud claims
A U.S. District Court judge in Kansas City, Kansas, issued a ruling Thursday declaring unconstitutional key portions of a 2021 state law aimed at limiting distribution of applications for mail-in advance ballots. (Sherman Smith/Kansas Reflector)
TOPEKA — A U.S. District Court judge issued a ruling Thursday declaring another portion of a 2021 Kansas law passed by the Legislature over the veto of Gov. Laura Kelly to be an infringement of First Amendment rights of speech and association in the U.S. Constitution.
The statute designed to block distribution of advance mail ballot applications to potential Kansas voters was inspired by Republicans who acted on false claims sophisticated crooks stole reelection from President Donald Trump in 2020. The Democratic governor vetoed the bill, but was overridden by the GOP-led House and Senate two years ago.
Implementation of the state law was stalled in wake of the federal lawsuit and the subsequent injunction authorized by Judge Kathryn Vratil. Last year, Vratil struck down portions of House Bill 2332 forbidding out-of-state groups from being involved in distribution of mail ballot applications to potential voters. The state’s attorneys had agreed this section of the law violated First and 14th Amendments of the federal constitution.
The Voter Participation Center and VoteAmerica, which conducted an unprecedented mail-in voter drive in Kansas during the 2020 election cycle, continued with a challenge to other elements of the law. The defendants were Republicans Secretary of State Scott Schwab, Johnson District Attorney Stephen Howe and Attorneys General Derek Schmidt and, later, Kris Kobach.
With representation from the Campaign Legal Center and other attorneys, the plaintiffs challenged the law’s ban on any person or organization soliciting a registered voter by mail and the law’s prohibition on sending by mail an application for an advance mail ballot that was personalized with the voter’s name and address. Under this scenario, a Kansas voter had to sign and date the application to initiate the process of securing an advance ballot from county election officials.
Vratil, who operates from the Robert J. Dole U.S. Courthouse in Kansas City, Kansas, said in the new ruling — a 42-page dissertation on shortcomings of the 2021 Kansas law — the personalized application prohibition was an unconstitutional restriction on “plaintiff’s core political speech and association” and was written so broadly it “criminalizes a substantial amount of protected speech.”
Under the law, it would have been illegal to mail an advance mail ballot application personalized with a voter’s name and address even if the voter provided that information and requested the application.
The Kansas law, however, carved out exceptions to the misdemeanor offense by permitting a subset of state and county election officials to mail pre-filled advance mail ballot applications. State lawyers defending the law argued the prohibition was necessary to minimize voter confusion, preserve voter confidence, reduce in inefficiencies in election administration and reduce potential voter fraud.
Tom Lopach, president and chief executive officer of the nonpartisan civic-engagement organization Voter Participation Center, said after Vratil issued the ruling that House Bill 2332 was “dangerous law.”
“It would have made voting more difficult for Kansans by threatening their ability to vote by mail,” Lopach said. “In the 2020 election, we saw firsthand the urgency of vote-by-mail in the midst of the pandemic. That’s why we fought back — to protect Kansans from this assault on our democracy. We will keep working to ensure every American can make their voice heard.”
The Voter Participation Center’s mission has been to bolster election participation among traditionally underserved groups, including young voters, voters of color and unmarried women, to rates commensurate with voters in other groups. The organization’s approach relied on direct mailings to encourage people to register and participate in the electoral process.
In the 2020 general election, the Voter Participation Center and its sister organization, the Center for Voter Information, sent advance mail ballot application packets to approximately 507,000 Kansas voters. An estimated 112,000 Kansans used one of these organizations’ pre-paid and pre-addressed envelopes to mail an advance ballot application to a county election office in that election.
Paul Smith, vice president for litigation at the Campaign Legal Center, said the Kansas statute was part of a national effort to restrict the freedom to vote. He said Kansas took aim at public-interest organizations attempting to help people navigate confounding mail-in voting systems.
Kelly issued her veto in April 2021 and argued provisions of the statute were a solution to a problem that didn’t exist in Kansas. Kelly, Schwab and Schmidt at various times had lauded the security and accuracy of Kansas elections.
“Although Kansans have cast millions of ballots over the last decade, there remains no evidence of significant voter fraud in Kansas,” the governor said. “It (the law) is designed to disenfranchise Kansans, making it difficult for them to participate in the democratic process — not to stop voter fraud.”
She said states enacting restrictive voting legislation often invited criticism from major corporations and the Kansas law could antagonize “the very businesses Kansas is trying to recruit is not how we continue to grow our economy.”
Her veto was overridden by the Kansas Senate on a vote of 28-12 and by the Kansas House by a vote of 86-37.
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