For the second time since 2023, a federal judge has found that a Kansas law barring the mailing of advanced ballot applications with personalized voter information violates the constitutional right to free speech.
U.S. District Judge Kathryn Vratil on Thursday found in favor of the Voter Participation Center, which challenged the law with VoteAmerica four years ago just months after it was enacted over the veto of Gov. Laura Kelly. Vratil blocked the state from enforcing the law.
Vratil’s ruling on Thursday essentially reaffirms her 2023 decision that halted 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.
However last year, a federal appeals court reversed Vratil’s decision and 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 was constitutional.
Vratil initially applied a strict scrutiny standard, meaning the state had to prove the restriction was narrowly tailored to meet a compelling governmental interest absent that the statute was enacted for an improper purpose.
However, the appeals 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.
In her ruling Thursday, Vratil found that the law didn’t pass either legal standard. She said the law still needed to pass the strict scrutiny standard because it was enacted for an “improper” purpose.
“The Court finds that it is more probably true than not true that the Kansas Legislature enacted the personal application prohibition to suppress speech which favors voting by mail,” Vratil wrote.
The state said that the law was intended to minimize voter confusion, preserve and enhance voter confidence and limit the potential of voter fraud by reducing inaccurate applications and inefficiencies in election administration.
During the 2020 general election, the VoteAmerica and its sister organization, the Center for Voter Information, sent advance mail ballot application packets to about 507,864 Kansas voters.
The packets included a letter encouraging voters to request and cast an advance ballot, provided a step-by-step guide on how to submit the included application and a postage-paid envelope addressed to the voter’s county election office.
During the 2020 general election with a record voter turnout, an estimated 112,000 Kansas voters used a prepaid and preaddressed envelope from the groups to mail an advance ballot application to their county election offices.
County election offices received approximately 14,739 duplicate applications from Kansas voters using envelopes from those two groups.
The state argued 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.
But Vratil saw it differently.
“Given the overall surge in advance mail ballot applications, the court does not doubt that some county election offices felt put upon or overburdened,” Vratil wrote.
“Because of the highly contested nature of the election, in addition to the pandemic, many voters were concerned that their mail ballots would not be received and counted — so they requested duplicate ballots for peace of mind,” she wrote.
She said the state, however, didn’t demonstrate that any “surge” of “inaccurate and duplicate” advance mail ballot requests was attributable to the very activity that the ban on personalized applications sought to prohibit.
“In fact, the record suggests that such activity is more helpful than harmful to overburdened election officials,” she wrote.
While the state has a compelling interest in preventing voter fraud, it presented no evidence documenting election fraud caused by advance mail voting, prefilled ballot applications or otherwise, Vratil ruled
“Defendants have presented no evidence of a single instance in which a specific voter received duplicate mail ballots, and they have presented evidence that every cast ballot was accounted for,” she wrote.
“Kansas officials publicly declared that the 2020 election was successful, without widespread, systematic issues of voter fraud, intimidation, irregularities or voting problems,” she wrote.
The judge noted that the law was enacted in the context of the 2020 election amid widespread – and unsubstantiated – claims of election fraud that culminated with the riots at the Capitol on Jan. 6, 2021.
She noted that before and after the 2020 election, mail-in voting had become one of several “scapegoats” for the alleged “stealing” of the 2020 presidential election.
But in Kansas, one week after the election, on Nov. 10, 2020, Secretary of State Scott Schwab declared that the 2020 election in Kansas successful, without widespread, systematic issues of voter fraud, intimidation, irregularities or voting problems.
She wrote that Schwab’s declaration was “an undisputed fact which calls into question any purported legislative intent to root out fraud, promote efficiency or avoid voter confusion in Kansas elections.”
Vratil also found that that law did not meet the legal standard of intermediate scrutiny by establishing that it was narrowly tailored to achieve any interest in preventing voter confusion.
“The Personalized Application Prohibition cannot withstand intermediate scrutiny because it is not narrowly tailored to achieving defendants’ significant interest.”
