A federal judge has found that 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.
U.S. District Judge Kathryn Vratil on Thursday found in favor of the Voter Participation Center, which challenged the law with VoteAmerica two years ago just months after it was enacted over the veto of Gov. Laura Kelly.
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.
Two years ago, Vratil also struck down another provision of the same statute when she halted part of the law that banned anyone who does not live or was domiciled in Kansas from mailing advance mail ballot applications to Kansas voters.
State officials have already agreed to not to enforce that part of the law, leaving only the personalized application prohibition to be litigated.
“Elections should be a contest of ideas, not a contest of who gets to vote,” the Voter Participation Center posted on Twitter when the decision was handed down.
“That’s why we fought back–to protect Kansans from this assault on democracy. We will keep working to ensure every American can make their voice heard.”
A spokesperson for the Kansas attorney general did not respond to a text message seeking comment on the decision.
The Voter Participation Center and VoteAmerica, which promote advanced voting by mail, argued that the overall 2021 law went beyond targeting voters to take aim at the ability of nonpartisan, public interest organizations to help people cast ballots.
They argued that the bill passed by the Legislature prohibited them from employing their most effective means of persuading voters to engage in the democratic process – mailing advance mail ballot applications to registered Kansas voters.
The groups said they were impeded by the law because they couldn’t send voters mail ballot applications with a preaddressed return envelope or personalize the applications by filling in the individual’s name and address information.
Vratil’s ruling on Thursday focused only on the Voter Participation Center and its ability to send prepopulated ballot applications to voters with their personal information.
The ban did not apply to VoteAmerica, which mails personalized advance mail ballot applications only to voters who have specifically requested them on its interactive website.
VoteAmerica was more centrally involved in the debate over whether the state could ban anyone who does not live or was domiciled in Kansas from mailing advance mail ballot applications to Kansas voters.
The Voter Participation Center, which promotes voting to traditionally underserved groups, testified that sending personalized advance mail ballot applications “increases voter engagement.”
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.
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, 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.”
Vratil said that the court record suggested that on balance, prepopulating the ballots was more helpful than harmful for overwhelmed election officials.
Shawnee County Election Commissioner Andrew Howell testified that in his county, duplicate and inaccurately prefilled advance mail ballot applications resulted in telephone calls, letters, emails and in-office visits from voters.
Howell testified, however, that he did not believe voters were confused and frustrated because they received prefilled applications, Vratil said.
“Rather, he believes that voters erroneously assumed that the county had mailed the pre-filled ballot applications and were frustrated at the purported incompetency of his election office,” she wrote.
The Shawnee County Election Office received 4,217 duplicate applications in 2020, as compared to the dozen or fewer that it received in the 2016 and 2018 general elections, according to Vratil’s opinion.
Douglas County Elections Director Jamie Shew testified that if not for budgetary constraints, his office would prefer to prefill the applications sent to voters.
Meanwhile, Johnson County mailed applications to all voters, deciding to allocate more resources to personalizing the applications.
The county end up prepopulating the advance ballot applications with more information than the plaintiff, Vratil wrote.
“The office reasoned that doing so ‘makes it easier for the voter and reduces mistakes that (officials) then have to work harder to fix on the backend.’”
Bryan Caskey, elections director for the Kansas secretary of state, testified that the 2020 postelection audits revealed that every cast ballot was accounted for and counted properly either by hand or by machine.
“When asked whether the audits revealed ‘any systemic fraud in Kansas elections in 2020,’” Caskey responded, ‘They did not,'” according to the opinion.
The federal court decision comes after a state appeals court ruling in March on a separate election law passed in 2021 that limited how many ballots can be delivered by a third party to an election office and imposed new signature requirements for advanced mail ballots.
The state 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.
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 a higher strict scrutiny standard. The election laws remain in place. They were not blocked in that case.
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.
Also in question in the state case 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.
