Attorney general, prosecutor fight over new election law

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Kansas Attorney General Derek Schmidt on Monday mixed it up with a local district attorney over whether to prosecute cases under a new election law that makes it illegal to masquerade as an election official.

The attorney general, now running for governor, was accused of attempted intimidation, “partisan bluster” and pandering to the electorate.

Schmidt announced Monday that he would prosecute any cases that might arise from a new election law that, among other things, makes it illegal for someone to falsely – and knowingly – represent themselves as an election official.

The bill also bars anyone from delivering more than 10 advance voting ballots on behalf of someone else during an election.

It also prohibits a candidates from assisting any voter in marking an advance
ballot or signing an advance ballot form.

And county election officers are also barred from accepting an advance voting ballot
by mail unless they verify the signature on the ballot envelope matches the signature on file in the county voter records

Schmidt’s announcement – on the eve of Tuesday’s primary elections – came about a week after Douglas County District Attorney Suzanne Valdez announced she would not make cases under the law, which is now the focus of a state lawsuit.

Derek Schmidt

“Citizens throughout our state deserve assurance that state election-integrity laws will be enforced and election crimes, like all other crimes, will be prosecuted when warranted by the evidence,” Schmidt said in a statement.

“The law of the state of Kansas is in effect statewide, including in Douglas County,” the attorney general said.

“So any law enforcement agencies that obtain evidence of election crimes may present the results of an investigation to our office for review, and we will make a prosecution decision based on the facts and law applicable to any individual case.”

Valdez fired back late Monday, saying Schmidt was overstepping his bounds.

“This undermining of my local authority is a disturbing example of overreach, attempted intimidation and partisan bluster,” Valdez said.

Valdez reiterated concern that the law in question is “too vague and too broad and seeks to ‘fix’ an already secure and thriving election system.

“The attorney general’s statement is a threat to those who educate the electorate and assist some of our most vulnerable citizens in exercising their right to vote.

Suzanne Valdez

“Attorney General Schmidt continues to perpetuate a lie that he fostered in his failed efforts to subvert democracy in the 2020 presidential election,” Valdez said, alluding to the brief Schmidt signed onto challenging the results of the presidential election.

“But in Douglas County, we follow the constitution.”

Early in June, four groups filed a lawsuit in state court challenging parts of two election bills – HB 2183 and HB 2332 – passed by the Legislature this session.

Democratic Gov. Laura Kelly vetoed both bills but she was overridden by supermajorities in the Republican-dominated Legislature.

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 a judge to immediately block part of the broader law.

They immediately wanted to stop a provision that bans anyone from falsely representing themselves as an election official. The judge has not yet ruled on that request.

The lawsuit says the law’s broad language “gives arbitrary discretion” in determining what constitutes conduct that may appear to be an election official.

The law specifically bans anyone from acting in a way that “would cause another person to believe a person engaging in such conduct is an election official.”

Critics said this provision could lead to Kansans being charged with a crime just by helping someone register to vote.

The state argues that the groups looking to immediately stop the law don’t have standing to challenge the statute because they don’t face an imminent threat of prosecution.

The state further contends that the law requires someone to knowingly misrepresent themselves as an election official, an issue that is not in play in this case.

“Plaintiffs do not identify any prior instance where a member was arrested for engaging in plaintiffs’ outreach efforts,” said the brief filed by Wichita attorney Brad Schlozman on behalf of the secretary of state and the attorney general.

“Nor is there any claim by plaintiffs that their members were warned or threatened with civil or criminal liability when a voter mistakenly mistook a member to be an election official,” the brief states.

“Plaintiffs do not assert that either the defendants or any county prosecutors have made public statements suggesting plaintiffs or similarly situated individuals will be prosecuted if they continue with their voter education.”

The state argues that the law requires someone to “knowingly” act in a way that casts the impression that they are acting as an election official.

“Surely plaintiffs’ members do not intend to engage in conduct where they knowingly cause a voter to believe plaintiffs’ members are election officials or employees of a county election office…,” the state argues.

“Indeed, plaintiffs’ self-professed missions center around educating Kansans about the importance of voting and the process for voting.”

The law “simply does not criminalize such efforts,” the state contends.

Valdez saw it from the side of the groups that brought the lawsuit challenging the law.

“This is not a partisan issue,” Valdez said last week.

“This law criminalizes essential efforts by trusted nonpartisan groups like the League of Women Voters to engage Kansans on participation in accessible, accountable and fair elections,” she said in making her announcement last week.

“It is too vague and too broad and threatens to create felons out of dedicated defenders of democracy.”