Voting rights advocates went to court Tuesday where they tangled with the state over a new election law that makes it illegal for someone to knowingly give the appearance of holding themselves out as an election official.
The state defended the law, saying that efforts to register voters are not threatened with prosecution because organizers would need to show intent if they falsely represented themselves as an election official.
Voting rights advocates say the threat of criminal prosecution is real, pointing to a public statement made by Republican Attorney General Derek Schmidt promising to bring cases against anyone who violates state election laws.
Four 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 asking a state judge to temporarily block part of a new election law passed this year.
They are asking Shawnee County District Judge Teresa Watson to issue a preliminary injunction to stop part of a new state law that makes it illegal to give the appearance of being an election official.
They want another similar section temporarily stopped that would make it illegal to engage in conduct that would cause another person to believe that someone is misrepresenting themselves as an election official.
Critics said this provision could lead to Kansans being charged with a crime just by helping someone register to vote.
The lawsuit said this provision would chill the free speech activities of various organizations to help Kansans know how to vote.
A couple of the groups set aside plans to register new voters leading up to the primary and general elections this year, citing the new law passed by the Legislature.
For instance, Loud Light said it abandoned voter registration drives planned for July 1 to mark the 50th anniversary of the 26th Amendment, which gave the right to vote to anyone 18 and older.
The group also canceled plans to register voters on college campuses throughout the state when students returned to campus this year.
The League of Women Voters, meanwhile, dropped plans to register voters at the Kansas State Fair out of fear of criminal prosecution.
Hal Brewster, the lawyer for the plaintiffs, said the law is written so broadly that a prosecution could be brought based on someone’s perceptions.
“This about people’s perception – subjective perception,” he said.
Brewster said the law is drawn too broadly to justify a compelling state interest that does not exist in this case.
He said the timing of the request for a temporary injunction is important as the November general election draws closer and the deadline for registering voters is now less than a month away.
The request for the injunction is separate from the overall state lawsuit challenging parts of two elections laws passed this year. A separate lawsuit against one of the new laws is pending in federal court.
Brad Schlozman, the attorney representing the state, argued that it would be very difficult to prosecute anyone for registering voters under the statute passed by the Legislature this year.
He accused the plaintiffs of glossing over language in the law that requires someone to “knowingly” give the appearance of misrepresenting an election official.
He said the plaintiffs were engaging in a “manufactured crisis.”
“The conduct that the plaintiffs…have engaged in in the past does not violate that statute,” Schlozman said.
“All the statute does is to require that they not intentionally mispresent themselves as an election official or engage in conduct that is designed to cause voters to believe they are misrepresenting themselves as an election official,” Schlozman said.
“We’re not imposing any constraints on their activity other than not engaging intentional conduct to (misrepresent) an election official,” he said. “They have expressed no interest in doing that.”
Brewster said the threat of prosecution under the law is not imagined. He pointed to a statement Schmidt made about prosecuting election law cases just before the August primary.
Schmidt vowed to prosecute any cases that might arise from the new election law in response to the Douglas County district attorney’s pledge not to bring cases under the new statute.
“Citizens throughout our state deserve assurance that state election-integrity laws will be enforced and election crimes, like all other crimes, will be prosecuted when warranted by the evidence,” Schmidt said in a statement.
“The law of the state of Kansas is in effect statewide, including in Douglas County,” the attorney general said.
“So any law enforcement agencies that obtain evidence of election crimes may present the results of an investigation to our office for review, and we will make a prosecution decision based on the facts and law applicable to any individual case.”
Brewster said the threat of prosecution is not speculative, adding that the state will elect a new attorney general next year who might bring cases under the law.
He also pointed out that there are prosecutors in any of the state’s 105 counties who could file charges against anyone for violating the law.
“The threat of criminal prosecution is not imaginary,” he said.