Kansas Attorney General Kris Kobach argues that voting rights shouldn’t be held to the same standard as other rights. (Rachel Mipro/Kansas Reflector)
TOPEKA — Kansas Attorney General Kris Kobach made his case to Supreme Court justices on Friday that voting rights should not be given the same protection as other constitutional rights, hoping to sway them over to his side in the latest twist of a long-lasting legal battle over 2021 election laws.
“If any of us wishes to exercise our freedom of speech, we may do so whenever we choose,” Kobach said, making his case. “If we wish to worship, we may do so whenever we choose. We have absolute autonomy, and we really don’t rely on anyone or any entity for us to do that. The same cannot be said of voting.”
The decision could have long-lasting legal implications for statewide elections — an institution that voting rights groups both locally and nationally have declared under attack.
Kobach is asking the high court to overturn of a court of appeals decision that declared voting a fundamental state constitutional right. If Justices choose to uphold the ruling, the Republican-dominated Legislature would be restricted in the extent to which they can pass election legislation in the future, because the right to vote would be held to the same high standard of protection as other constitutional rights, such as abortion.
Kobach’s underlying argument is that Kansans’ right to vote has not been impeded by state law restricting the number of advance ballots a person can deliver to an election office. He also argues that state law requiring election volunteers to verify signatures on advance ballots is not unduly burdensome — a notion voting advocacy groups have fought against.
His opponent Elisabeth Frost, an attorney representing several voting rights advocacy groups in the case, said “signature matching is worse than flipping a coin,” in terms of accuracy, and said Kansas had been “securing elections just fine” without the additional measures.
During the approximately hourlong oral arguments Friday, justices questioned Kobach and Frost on the nature of voting rights.
Justices appeared to express skepticism for arguments on both sides.
“Where I’m having a challenge here is how it is we decide whatever law or regulation impairs the right to vote,” said Justice Eric Rosen, questioning Frost. “How does that line get drawn?”
Justice Melissa Standridge said limiting the number of ballots collected would impact organization that sent out volunteers.
“If they were usually collecting 50, they would have to recruit five times as many volunteers,” Standridge said.
The case is a result of 2021 election reform law passed by the Republican-dominated Legislature in response to election fraud concerns — though there is no evidence of election fraud in Kansas.
The law requires election officials to evaluate advance ballots by matching signatures on file with the county with signatures on ballot envelopes and limits the number of advance ballots an individual can gather for delivery to an election office to 10.
A lawsuit fighting these changes was originally filed against Secretary of State Scott Schwab and Attorney General Kris Kobach by the League of Women Voters of Kansas, Loud Light, Kansas Appleseed Center for Law and Justice, and the Topeka Independent Living Resource Center.
The advocacy groups argued the mandates infringed upon constitutional rights. A Shawnee County District Court judge dismissed the lawsuit, but a three-judge panel of the Kansas Court of Appeals reversed the decision, declaring voting a foundational constitutional right.
The appellate opinion remanded the case back to district court, referencing a legal precedent set by the Kansas Supreme Court in 2019 declaring abortion rights were embedded in the Kansas Constitution.
“Attorney General Kobach is arguing that the state really can do nearly whatever they want to burden the right to vote,” said Davis Hammet with Loud Light, one of the groups involved in the case. “To pass regulations based on no accurate or factual information, even if it throws out hundreds, thousands of Kansans’ ballots.”
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