A divided state appeals court on Friday dismissed a challenge to a state law that made it illegal for someone to falsely give the appearance of acting as an election official.
A three-member appeals court panel ruled 2-1 that the four civics groups that challenged the law did not have standing to challenge the law in court.
The four groups – the League of Women Voters of Kansas, Loud Light, the Kansas Appleseed Center for Law and Justice and the Topeka Independent Living Resource Center – had asked the appeals court to issue a temporary injunction stopping the law.
They said the statute had a chilling effect on their efforts to educate and register new voters for fear that they could be prosecuted if someone wrongly perceived them as acting as an election official.
Loud Light and the League Women Voters had already shut down their voter registration efforts while the lawsuit played out in court.
However, the court found that the groups didn’t demonstrate that there was enough of a controversy in the case to warrant legal action and their fears of being prosecuted were subjective.
The panel found that law required the groups to “knowingly” give the appearance of misrepresenting an election official to be at risk of prosecution for registering and educating voters across Kansas.
Writing for the court, Judge Lesley Isherwood said the groups had to undertake their civic engagement activities knowing that they were reasonably certain to give the impression that they were election officials.
“The record before us lacks any evidence of such ‘knowledge,’ but teems with evidence to the contrary,” the court ruled.
“In truth what it reveals, is that the appellants collectively labor under a misconception that the language of the provision does not demand any deliberate conduct by their members before they can be at risk of prosecution,” the court said.
“Rather, they believe an innocent advocate will be subject to criminal repercussions if, through no fault of their own, a single outreach participant or event attendee merely walks away from an encounter with the mistaken belief that the voice they heard was that of a county election official,” the court ruled.
Isherwood, appointed to the court by Gov. Laura Kelly, said that the plain language of law had been misunderstood because it prohibits ‘knowing’ conduct.
Mere confusion that someone would be perceived as an election official does not subject them to criminal prosecution, the court said.
The fact that all four groups proudly demonstrate their efforts to educate and register voters undercuts their very case, the court said.
“It’s that display of pride that places appellants beyond the statute’s reach,” the court said.
“Notably, because of the appellants’ standard practice in clearly identifying their respective affiliations, of the ‘tens of thousands of Kansans,’ with whom they interacted in 2020 alone, only ‘some’ inadvertently mistook volunteers for election officials,” the court said.
And when those mistakes occurred, the groups made clear that they were not election officials, the court said.
The court found that none of the groups that brought the challenge had ever done anything that violated the law.
“Thus, their concern fails to rise above a mere subjective fear and such is not sufficient to carry their burden,” the court ruled.
Judge Stephen Hill authored a dissent, saying the court swept the matter off the bench in deciding the issue on legal standing.
“The practical effect of the majority’s ruling is to tell these four groups – the appellants in this appeal – that one member from each group will have to be arrested, charged, tried and convicted and sentenced to prison before they dare challenge this law.”
Hill, appointed by former Gov. Kathleen Sebelius, said the opinion issued on Friday means there will be no pre-enforcement to Kansas laws under the state constitution.
“My friends are erecting unnecessary obstacles that prohibit fair and reasonable legal actions seeking to protect Kansas constitutional liberties,” he wrote.
Teresa Woody, litigation director for Kansas Appleseed, said her organization is “deeply disappointed by the decision.”
“As the dissent noted, the majority of the court is, in effect, holding that members of the plaintiffs’ organizations would need to be ‘arrested, charged, tried, convicted, and sentenced to prison’ before they could challenge the unconstitutionality of this voter suppression law,” Woody said in a statement.
“The effect of the opinion is to prevent any pre-enforcement challenges to unconstitutional laws. We absolutely believe that Judge Hill’s dissent opinion that plaintiffs’ have standing is correct and will rely on it in going forward in this case,” she said.
“We believe, as the majority states, that every Kansan should be able to cast a vote to ensure their voices are heard,” she said.
“Until the courts address the unconstitutionality of these laws, however, they will continue to suppress voting and election activities, to the detriment of full and fair elections in Kansas.”
The case before the appeals court was part of a larger case that also challenged a section of the law that caps the number of ballots third parties can collect and deliver to election offices on behalf of someone else.
They also are challenging a prohibition on county election officers from accepting an advance voting ballot sent by mail unless they verify that the signature on an advance voting ballot envelope matches the signature on file in the county voter registration records.
In April, Shawnee County District Judge Teresa Watson dismissed claims that the signature verification requirement and the so-called “ballot harvesting” restriction violated the state constitution by interfering with voting and the freedom of speech and association
