State urges Supreme Court not to hear election law appeal

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Lawyers for the state are urging the Kansas Supreme Court not to consider the legal dispute over a new election law that critics say would lead to the prosecution of Kansans educating and registering new voters.

They are asking the court to set aside an appeal of a Shawnee County judge’s decision not to block a state law outlawing someone from giving the appearance of holding themselves out as an election official.

Four 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 – are challenging the law.

Loud Light and the League of Women Voters said they have dropped plans to register voters out of fear that they would be prosecuted because they might be wrongly perceived as an election official.

They are requesting the court to move swiftly so they can register voters before this November’s municipal elections. The deadline for registering to vote for the November election is Oct. 12.

The state’s lawyer, Brad Schlozman, said in his brief that the plaintiffs have already got the court ruling they wanted because the judge found that someone would “knowingly” have to give the false impression of acting as an election official.

The district court’s ruling, Schlozman argues, makes it clear that the civic groups can register voters without fear of being prosecuted.

“Plaintiffs have effectively achieved what they wanted – a judicial opinion that their self-described historical and proposed future conduct is permissible,” he contended.

“For reasons that we will leave to others to discern, however, plaintiffs refuse to take yes for answer,” he wrote.

He argues that the civic groups could not be prosecuted under the law unless there was an intent to mislead someone into believing that they were an election official – something they said in court affidavits that they don’t do.

“Even assuming plaintiffs had telepathic skills and could be dead certain that members of the public will perceive them to be election officials despite their making no effort at all to create such a representation – as they emphatically claim not to make – a criminal prosecution still would not be constitutionally permissible without such intent.”

The civic groups argue in their filing with the court that the issue turns not so much on intent as it does whether they knew that it was possible they could be perceived as an election official no matter how irrational or uninformed that view might be.

They argue that the state has now criminalized not just an activity that is intended to lead someone to believe they are an election official, but any activity that could lead to the misperception that they are an election official.

“The dangers of this exceedingly broad statute cannot be overstated,” the plaintiff’s lawyers argue in their briefings.

“The public record is now littered with examples of how misunderstandings about the elections system and different actor’s roles in it resulted in an unprecedented deluge of litigation the baselessly sowed doubt about the legitimacy of the  results of the last presidential election,” they argue.

“While each of these cases were rejected by the courts, (the state election law) now invites this same type of mischief in the form of felony criminal prosecutions of anyone whose behavior could create the misapprehension by a third party that they’re an election official.”

The plaintiffs argued that they submitted undisputed evidence that the new law discourages them from participating in their voter registration and outreach efforts.

“Indeed, in their long experience conducting such activities in Kansas, they have often been mistaken for electon officials, even though they have never attempted to cause that misapprehension and even when they have taken affirmative steps to make their non-government affiliations known.”