The state Supreme Court has agreed to review a lower-court ruling that found that limiting how many ballots can be delivered by a third party to an election office and imposing new signature requirements for advanced mail ballots violated the right to vote.
The court on Friday agreed to review the case in which a three-member appeals court panel found that voting was a fundamental state constitutional right, a ruling Republicans criticized as a massive shift in the judicial standard for reviewing election laws.
A date has not been set for the court to hear the case. The court is already reviewing a separate dispute over another state law that makes it illegal for someone to knowingly give the false appearance of acting as an election official.
The Supreme Court heard the election official case in February and a decision could come at any time in the coming weeks.
Teresa Woody, legal counsel for Kansas Appleseed, one of the plaintiffs challenging the election laws, said she wasn’t surprised by the court’s decision to take the case.
She noted that all three challenged statutes were originally part of the same lawsuit, so it made sense why the court would want to hear this case.
“I am not all surprised that they would want to take it and weigh in because I think those were all tied together,” Woody said.
A comment was not available from the attorney general’s office.
The court is now zeroing on the appeals court ruling from last March that found the right to vote was fundamental and guaranteed under the Kansas Constitution, and any act that infringes on the right is subject to strict scrutiny.
The court reversed a decision by Shawnee County District Judge Teresa Watson, who upheld the signature verification requirement and the so-called “ballot harvesting” restriction.
Similar to the Supreme Court’s ruling in a landmark 2019 abortion case, the appeals court’s decision set a heightened standard of strict scrutiny for changing election laws.
It means the state must not only demonstrate a compelling interest for the law but also explain how it was narrowly tailored to meet that interest.
The state argued that if the appeals court decision on voting restrictions was allowed to stand, it would jeopardize every election law on the books.
The state wanted the Supreme Court to hear the case, a position opposed by four civic groups that were challenging the law.
“In an unprecedented departure from both federal law and the law of virtually every state, the Court of Appeals held that any law burdening the right to vote — no matter how slight — must be subjected to strict scrutiny,” the state argued in its brief to the court.
“If allowed to stand, this decision would severely jeopardize the survival of nearly all statutes and regulations in the state that govern the mechanics of the election process and that are, at their core, designed to safeguard the security of the ballot, deter fraud, facilitate efficient election administration and enhance the public’s confidence of elections.”
The state argued that subjecting all election laws to strict scrutiny “would invite endless litigation and grind our election framework to a halt.”
“Worse still, as if — as plaintiffs here propose and the Court of Appeals seemed to embrace — our legislature can impose fraud prevention measures only when there is proof that Kansas itself has experienced some unspecified level of fraud, then the legislature will always be acting after the fact and will be powerless to avoid future potential harms.”
The civic 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 — argued in their brief that the Supreme Court should not hear the case right now.
They said the petition for review was premature.
They contended that the appeals court correctly ruled the restrictions on ballot collection and signature matching requirement violated the right to vote and that the case was properly sent back to the district court for further review.
The groups said the case didn’t present any new question of state constitutional law, noting that the Supreme Court has repeatedly held that laws that violate fundamental rights are subject to strict scrutiny, including the 2019 abortion case.
They said that the state is exaggerating its claims by arguing that subjecting the right to vote to strict scrutiny would make a mockery of the state constitution and bring the election system to a halt.
“These contentions are baseless,” the civic groups argued.
“Requiring laws that make it more difficult to be narrowly tailored to compelling government interests ensures that the legislature cannot unduly restrict access to the franchise by enacting an endless series of small barriers and affirms Kansas’ longstanding constitutional commitment to the fundamental right to vote,” they contend.
“It is these attacks — not the Court of Appeals’ unanimous decision recognizing the strong protections afforded to the fundamental right under the Kansas Constitution — that threaten Kansas elections and its constitutional commitment to maintaining a free and fair democracy.”
