A federal appeals court has reversed a ruling that found a 2021 election law that barred the mailing of advanced ballot applications with personalized voter information violates the constitutional right to free speech and association.
A three-judge panel from the U.S. 10th Circuit Court of Appeals sent the case back to the district court in Kansas City for further review where it was instructed to apply a more relaxed legal standard in deciding whether the law is constitutional.
U.S. District Judge Kathryn Vratil applied a strict scrutiny standard in ruling against the law, meaning the state had to prove the restriction was narrowly tailored to meet a compelling governmental interest.
However, the court ruled that Vratil should have applied an intermediate scrutiny standard, which requires the law to be narrowly tailored to serve a “significant governmental interest” that leaves open ample alternative types of communication.
Vratil blocked the state from enforcing the ban after finding that it restricted the plaintiffs’ right to core political speech and association and that it was constitutionally overbroad.
It was immediately unclear to state officials whether the injunction was still in place.
The plaintiffs that brought the lawsuit – the Voter Participation Center and VoteAmerica – argued the law should be subject to strict scrutiny because it was not viewpoint and content neutral.
The plaintiffs, which promote advanced voting by mail, contended that only content-based laws are preemptively unconstitutional and generally subject to strict scrutiny.
The three-judge panel – made up of appointees from Presidents George W. Bush, Barack Obama and Donald Trump – disagreed with the plaintiffs. They believed the threat to free speech in this case was nominal compared to other forms of communication.
“The mailing of prefilled applications is hardly a ‘fundamental’ method of communication or one that ‘is the essence of First Amendment expression,’ like the distribution of political leaflets or the one-on-one discussions accompanying the circulation of petitions,” the judges wrote in their 58-page opinion.
Despite the law, the Voter Participation Center “remains free to choose what avenue of communication it will use to advocate for mail voting, including the use of unsolicited mailers,” they wrote.
The three-judge panel said that it believed the threat to free speech posed by the law was sufficiently small that adequate protection was provided by intermediate legal scrutiny – short of evidence that the law was enacted for an improper purpose.
The panel acknowledged that the plaintiffs believed the law unconstitutionally singled out certain speech because it only applied to speech advocating for mail voting and only those communications would include a personalized ballot application.
“The argument seems to be that because pro-mail-voting groups are more likely to use prefilled applications to advance their message, (the law) is discriminating against” the plaintiffs’ viewpoint, the judges wrote.
However, the judges ruled that the argument didn’t address whether the law was content neutral but rather questioned whether the law was adopted for some sinister purpose, an issue the district court can consider when it takes the case up again.
The Voter Participation Center believes that personalized applications are the most
effective way to promote its pro-mail voting message, and if the ban stood, the group would have to reconsider how to communicate with Kansas voters.
In 2020, the Voter Participation Center and its sister organization, the Center for Voter Information, sent Kansas voters a packet that included a mail-ballot application with instructions about how to vote by mail and a cover letter encouraging voters to apply for and cast a mail ballot.
The two groups sent mail-voting packets to about 507,9002 Kansas voters for the 2020 election, compared to about 90,000 sent in 2018.
The targeted voters received anywhere from one to five mail-voting packets, according to the court’s ruling.
Of the voters who were sent a packet, at least 112,597 used the prepaid envelope to send in a mail-ballot application, and an estimated 69,000 of those voters used a mail-ballot application sent by the Voter Participation Center.
Those 112,597 voters who used the prepaid envelope provider by the Voter Participation Centers sent 127,336 applications to county election officials, meaning that 14,739 duplicate applications were sent using envelopes provided by the groups.
The state argued that the personalized application prohibition was necessary to minimize voter confusion, preserve and enhance voter confidence, reduce the rejection of inaccurate ballot applications and reduce the risk of potential voter fraud.
However, the appeals court found that those rationales were not part of the legislative record for enacting the law. While the secretary of state submitted written testimony on the bill that mentioned incomplete mail ballot applications, the judges noted it did not include any discussion of prefilled advance mail ballot applications.
Vratil dismissed the state’s arguments, especially as it related to voter fraud and whether a surge in ballot applications led to mistakes during the 2020 elections when almost a half-million Kansans voted by mail during the height of the pandemic.
“Even if Kansas had a problem with election fraud, the personalized application prohibition is not narrowly tailored to prevent such fraud,” Vratil wrote.
“Defendants argue that a surge of ‘inaccurate and duplicate’ advance mail ballot applications decreased the efficiency of county election officials, which in turn increased the ‘opportunity’ for mistakes,” Vratil wrote.
“Even in a historically unprecedented election, they cite no evidence of a single mistake.
“Given the overall surge in advance mail ballot applications, the court does not doubt that some county election offices felt put upon or overburdened,” she said.
“Defendants have not demonstrated that in this context, any ‘surge’ of ‘inaccurate and duplicate’ advance mail ballot requests was fairly attributable to activity which the personalized application prohibition seeks to prohibit.”
