State defends new election law in court

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Out-of-state efforts encouraging Kansans to vote by sending them advance mail ballot applications were blamed Wednesday for causing voter confusion and anger leading up to last year’s elections.

State Lawyers used evidence that voters received multiple mail ballot applications to defend a new state law that bans anyone who does not live – or is domiciled – in Kansas from mailing an advance mail ballot application to Kansas voters.

The law also bars mailing any advance mail ballot application that has been personalized with the voter’s information.

The federal lawsuit brought by VoteAmerica and the Voter Participation Center contends those restrictions stifle political speech and activity in violation of the U.S. Constitution.

The lawsuit says the bill passed by the Legislature prohibits the groups 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 say they’re impeded by the law because they can’t send voters mail ballot applications with a pre-addressed return envelope, and personalizing the applications by filling in the individual’s name and address information.

Executives from both companies appeared in court Wednesday and emphasized those points during a three-hour hearing before U.S. District Judge Kathryn Vratil.

Vratil is weighing a request to temporarily block the law, which the Legislature passed last session over the objections of Democratic Gov. Laura Kelly.

The hearing held Wednesday was for Vratil to hear evidence in the case. A second hearing is set for Oct. 8 for lawyers to make oral arguments.

Company officials say their methods, which include prepopulating ballot applications with personal voter information, are the best way to foster voter participation.

Daniel McCarthy, vice president of finance and operations for VoteAmerica, said the law would make it “almost prohibitive” for his organization to offer voter services under the state statute that starts this January.

“We want to make it as easy as possible for voters to be able to walk through the complex process,” McCarthy said.

VoteAmerica, a California-based 501(c)(3) nonprofit, targets low-propensity voters who may be less affluent or ignored by the political parties.

VoteAmerica says a key component of its messaging is providing voters with information and resources to complete their applications for mail and absentee ballots.

VoteAmerica’s absentee and mail ballot tool delivered personalized advance mail voting applications to Kansas voters by email during the 2020 election cycle

At least 7,700 Kansas voters used VoteAmerica’s absentee and mail voting tool during Kansas’s most recent elections to receive a personalized advance ballot application.

One of the state’s lawyer’s – Scott Schillings – pressed McCarthy about whether the other services Vote America offers – election reminders, polling locations, tracking absentee ballots, among others – could still be employed regardless of the law.

“Nothing in (the law) prevents you from doing what you’re doing on your website,” Schillings said. “The bill doesn’t interfere with any other resources.”

McCarthy said VoteAmerica is all about reducing the burden for prospective voters, a key element in its mission to encourage more people to vote.

McCarthy said the law “seriously” limits VoteAmerica’s ability to help voters.

“We believe this is about our ability to communicate with voters,” he said.

Tom Lopach, president and CEO of the Voter Participation Center, said that voters tend to be more responsive when the profile information is added to the application.

“This is the way to engage voters in a democracy,” he said.

An estimated 69,577 Kansas voters submitted an advance mail voting application
provided by the Voter Participation Center to their county election official in the 2020 general election, court records show.

The state called two witnesses to illlustrate that mail ballot applications were causing confusion among voters and straining the local election system in otherwise already extraordinary circumstances with the pandemic

Shawnee County Election Commissioner Andrew Howell said his office received almost 3,000 duplicate mail ballot applications.

Howell said 2,703 voters received two applications, 198 received three applications and 40 received four applications. One person received seven applications.

Howell said his office received calls last year from voters who were highly suspicious about receiving multiple applications that were not coming from his office, although they looked official.

“There was confusion and anger from voters who thought we were pushing an agenda,” Howell said.

“It was very confusing for voters. It was difficult to figure out what was going on.”

Former Johnson County Election Commissioner Connie Schmidt reported receiving a high volume of mail ballot applications, of which many were duplicates as well.

Testimony revealed that of the roughly 200,000 mail ballot applications that came into the Johnson County election office, between 30,000 to 35,000 were duplicates.

Both explained the time-consuming nature of handling advanced mail ballot applications to ensure their voter information is accurate and that ballots aren’t mailed twice.

They explained that their offices were under great pressure to process the mail ballot applications because state law required the ballots to be sent out within 48 hours of receiving the application.

They said election officials worked long hours and late into the night to get the ballot applications processed.

Under cross examination from the plaintff’s attorney, Howell acknowledged that his office was able to meet the turnaround time for the ballot applications and that all votes cast were counted.

Vratil quizzed Howell from the bench about whether he could blame the increase in duplicate mail ballot applications on the he efforts of VoteAmerica and the Voter Participation Center.

“Why do you attribute this to the plaintiffs?” she asked.

She pushed Howell for data about mail ballot applications from earlier years, something he couldn’t provide during the hearing.

Vratil noted that 2020 was an unusual year given the pandemic and that election integrity was already a hot issue with suspicions already swirling about the U.S. Postal Service and whether ballots would be delivered on time.