(Updated to add comment from attorney general and House speaker plus more details from opinion.)
The state appeals court on Friday found that a state law limiting how many ballots can be delivered by a third party to an election office and imposing new signature requirements for advanced mail ballots violated the right to vote.
The three-judge panel found that voting was a fundamental state constitutional right in reversing a decision by Shawnee County District Judge Teresa Watson, who upheld the signature verification requirement and the so-called “ballot harvesting” restriction.
“History records the struggle Kansans experienced when joining the Union of States. It was by free elections that we gained statehood,” the three-judge panel ruled. “Thus, voting rights are preserved in the Kansas Constitution.
“Great care must be taken when trying to limit or infringe on those rights. Voting was important then. Voting is important now,” said the opinion authored by Stephen J. Hill on behalf of the court.
Republicans immediately responded, calling the decision a massive shift in the judicial standard for reviewing election laws that could threaten others already on the books such as voter identification.
Similar to the Supreme Court’s ruling in the landmark 2019 abortion case, the appeals court found the right to vote is a fundamental right guaranteed under the Kansas Constitution and any act that infringes on the right is subject to strict scrutiny.
“There is no question that the right to vote is a fundamental right protected by the Kansas Constiution,” Hill wrote.
“The right to vote is the foundation of a representative government that derives its power from the people.”
The heightened standard of strict scrutiny means that the state must not only demonstrate a compelling interest for the law but explain how it was narrowly tailored to meet that interest.
The ruling provides the same constitutional protections to voting as abortion, which potentially could mean other voting restrictions might be challenged using the same legal standard.
It also potentially raises legal questions about voting limits that are now pending before the Kansas Legislature, such as a ban on remote ballot drop boxes or ending the three-day grace period for mail ballots to arrive at election offices.
“It’s a real victory for Kansans because it gives us the right to challenge these statutes,” said Teresa Woody, legal counsel for Kansas Appleseed, one of the plaintiffs that challenged the laws.
“It puts the burden on the state to show they can meet the strict scrutiny stands, which we don’t believe they will be able to do,” Woody said.
House Speaker Dan Hawkins said the decision was “shocking.”
It “endangers every election integrity measure currently on the books,” he said.
“It’s just the latest salvo in the effort by the woke left to destroy the sanctity of the ballot box and opens our state up to the possibility of massive election fraud.”
The case was sent back to the district court to give the state a chance to show how the signature requirement and the limit on ballot collection would meet the strict scrutiny standard. The election laws remain in place. They were not blocked.
“Preventing voter fraud is a compelling state interest,” the court ruled.
“But our Supreme Court has also held there is a compelling state interest in increased participation in the election process from mail ballot voting.
“The state must establish a compelling interest and narrow tailoring of the law to serve the interest.”
Republican Attorney General Kris Kobach called the decision the “most radical election law decision in the country.” He said he would appeal.
“The decision is directly contrary to what the U.S. Supreme Court has said, as well as what every state supreme court has said on the matter.”
At issue was a 2021 state law that limited to 10 the number of ballots third parties can collect and deliver to election offices on behalf of someone else.
Republicans said the process of collecting large numbers of ballots – called “ballot harvesting” – was ripe for abuse and the measure was intended to safeguard elections.
However, the court saw the law as stepping on the right to vote.
“This statute is a limitation that prevents votes from being cast and counted,” the court ruled.
Also in question was a ban on county election officers from accepting advance voting ballots sent by mail unless they verify that the signature on the ballot envelope matches the signature on file with the election office.
The court found that this section, too, violated the right to vote.
“Plaintiffs claimed that the signature matching requirement burdens the right to vote because ballots are rejected erroneously,” the court ruled.
“This provision burdens the whole electorate because signatures are wrongly mismatched for reasons we have already discussed above,” the court said.
While the Legislature can require voters to establish their right to vote, whether an election official perceives a voter’s signature as a mismatch is not in the voter’s control, the court ruled.
“Lay election officials will erroneously determine voters’ signatures are mismatched. Thus, the statute disenfranchises voters even after the voter provided ‘proper proofs,'” the court ruled.
“The statute alone does not require training of election officials, contains no standard for determining what constitutes a signature match, and does not provide a standard for the opportunity to cure an error made when matching signatures.”
Arguing for the state, Brad Schlozman told the court during oral arguments that state election officials adopted new regulations for matching signatures that don’t pose hurdles for Kansans to cast a ballot.
The regulations were adopted after the lawsuit was filed challenging the laws in 2021. The new rules were implemented before the 2022 primary elections in August.
The new regulations mean that voter signatures have to be “generally uniform and consistent” with the signature in the voter registration database.
The rule also calls for county election officials to call the voter at least three times if there was a signature mismatch.
They also must notify the voter by first-class mail of the apparent mismatch.
However, the appeals court ruled that the new regulations were issued after the district court dismissed this case.
“We will not consider the regulation now,” the court ruled.
“It would be unfair to the parties for us to consider its impact on these issues if they have not had the chance to brief the point.
“Additionally, it would be improper for us to take up the effect of the regulation since the district court did not have a chance to consider the matter.
“No doubt the impact of this new regulation will affect the procedural due process analysis on remand.”
Kobach called the ruling “illogical.”
“Having election officials make sure that it is your signature on your advance ballot doesn’t hurt your right to vote,” he said.
“It protects your vote from being stolen by someone else. This is especially true because the Kansas statute gives the voter a second chance to sign again when the signatures don’t match.”
