District attorneys from Kansas’ largest counties say they won’t close the door on prosecuting cases under a new election law that bars someone from holding themselves out falsely as an election official.
Despite complaints that the law is vague and broad, district attorneys in Johnson and Sedgwick counties said this week that they wouldn’t flatly rule out prosecutions without seeing a specific set of facts in a case.
Their comments run counter to the Douglas County prosecutor, who announced she would not carry out cases under the new law because it would have a chilling effect on informing and registering voters.
“I am not inclined to make sweeping statements about what I will or won’t do until I’ve seen an actual set of facts,” Republican Sedgwick County District Attorney Marc Bennett said in an interview this week.
“I’m far more inclined to wait and see what law enforcement would bring me, what sort of circumstances law enforcement might uncover before I just go make a sweeping statement one way or the other,” Bennett said.
Johnson County District Attorney Steve Howe echoed similar thoughts.
He said the lynchpin in the law is whether someone knew that they were falsely representing themselves as an election official.
“If someone knowingly says that they represent an election official, that’s different than someone trying to get people to get out to vote,” he said.
“The intent of the law is to make sure that people are on the up and up, and when you talk to someone you know who you are talking to,” he said.
Howe said he has seen other laws on the books that are no more specific than the election law in question.
“I’m sure it’s going to run through the traps and the courts will tell us whether or not it’s got enough specific language to it,” he said.
“As of now, it’s a law in the state of Kansas,” he said. “Until we’re told otherwise, I think we have a duty to enforce it.”
Howe, a Republican, said he would look at the facts of each case individually that might be brought under the law before making a decision about whether to prosecute.
“If the facts support it, then it more than likely we’ll probably file charges on it,” he said.
“If the facts don’t support it’s a knowing act, then we won’t, ” he said.
Howe and Bennett’s comments are very different from Democratic Douglas County District Attorney Suzanne Valdez, who has pledged not to bring cases under the new law that’s now being challenged in state and federal court.
“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,” Valdez said in announcing that she wouldn’t prosecute the law.
“The law makes it illegal for an individual to engage in conduct that gives the appearance or would cause someone to believe he or she is an elections official.”
Valdez’s comments prompted Republican Attorney General Derek Schmidt, now a candidate for governor, to promise this week to prosecute the law if Valdez refused.
He encouraged law enforcement agencies that obtain evidence of election crimes to present the results of an investigation to his office for review.
Leavenworth County Attorney Todd Thompson said he would be willing to make cases under the law, but they would need to be evaluated individually.
Thompson said there’s a difference between some being perceived as holding themselves out as an election official and doing that knowingly under the law.
“Asking anyone to vote, really, I don’t think is a problem or (asking) anyone to register to vote is a problem,” Thompson said.
“I would hope people wouldn’t be scared of trying to help people register to vote. I think that’s a very important thing to facilitate,” he said.
“But obviously anyone who’s representing someone that they’re not in order for a malicious reason should be prosecuted,” he said.
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.
Loud Light and the League of Women Voters shut down their voter registration efforts a couple weeks ago out of fear of being prosecuted under the law.
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.
