In an era when some people still believe the 2020 election was stolen, it’s not unreasonable to believe that civic groups registering voters could be viewed as illegally holding themselves out as election officials.
That was the parting message left for the state Supreme Court on Wednesday by the lawyer for a coalition of groups challenging a state law making it illegal for someone to knowingly give the false appearance of acting as an election official.
Last summer, a three-member appeals court panel ruled 2-1 that the four civic groups that challenged the law did not have standing to take their case to court.
The 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 – appealed the case to the Supreme Court.
“The League of Women Voters has done voter registration in Kansas for over 100 years. The other organizations that brought this lawsuit are deeply committed to this work and have done it for years,” said the plaintiff’s lawyer, Elisabeth Frost, told the court.
“They have severely curtailed their efforts. It is frankly absurd to suggest that they have brought this lawsuit and curtailed their activity for just the fun of it,” she said.
“They are afraid because the plain language (of the law) makes them afraid.”
Justice Caleb Stegall asked Frost what she might think of a ruling that upheld the law, finding that statute was construed to include a “reasonable listener” standard.
“Would they no longer be afraid?” Stegall asked.
Frost said the law is a problem for many reasons beyond what a “reasonable listener” might think or perceive when they see volunteers registering voters.
“There are so many other issues with the statute, I think this is one that just needs to be stricken,” she said.
“If the Legislature wants to try, it can try again,” she said.
“I don’t think (it’s) the reasonable person standard alone. It’s certainly a very obvious problem with the statute, but alone I don’t think it gets you past all the constitutional hurdles here.”
Justice Melissa Standridge noted that people can believe things that are generally accepted as unreasonable but are viewed as reasonable in some contexts.
“When you read the news…and you hear how many millions and millions of people and representatives of citizens in this country do believe that the 2020 election was stolen, is there a chance that could be deemed a reasonable belief?” she asked.
Frost said that’s one of the problems with the law, which the plaintiffs say put them at risk of prosecution if they’re wrongly perceived as an election official – even if that might be viewed as an unreasonable claim.
“We are currently in a climate where lots of people believe, or frankly I believe, are unreasonable things but lots of other people don’t believe they’re unreasonable, particularly when it comes to the activity of election officials,” Frost said.
Frost said she didn’t think the court should overlook that the law was passed at a time when some constituencies refused to accept the outcome of the 2020 election.
“I don’t think this court can ignore that is the context in which this was passed, a context in which election officials are regularly being harassed across the United States and threatened,” she said.
During the roughly hourlong hearing, Stegall pushed the idea of a “reasonable listener” and how the law and civic activists would viewed by a reasonable person.
“Isn’t speech or expressive conduct necessarily imply or require a reasonable listener?” Stegall asked.
“There are two parties. It’s communicative behavior. There can be no speech without that reasonable listener,” he said.
Frost disagreed, saying the idea of using that standard “undermines the whole basis of why we are so careful and demand such specificity in this space specifically.”
Stegall countered, asking if the law would pass muster if it explicitly said that it was illegal to engage in conduct that gave the appearance to a “reasonable observer” that would cause someone to believe they were an election official.
“Do you think there could ever be constitutionally protected speech which gives the appearance to a reasonable observer that someone is an election official when they’re not?” he asked Frost.
Frost responded, “Absent some actual fraud or intent to commit fraud, no.”
The state’s attorney, Bradley Schlozman, argued that the plaintiffs created a “completely manufactured controversy” in which they asked the court to interpret the law in the “most unreasonable manner possible” to expose themselves to prosecution.
“The statute doesn’t support the interpretation that they advanced here, and there is no basis for invalidating this duly enacted legislation,” he said.
Stegall pressed Schlozman about why the statute didn’t support that interpretation.
“The statute is focused on the speaker,” he said. “They are trying to construe this as focused on the views of the listener. That is not the most logical reading of the statute.”
He said the plaintiffs have ignored the word “knowingly” in the statute, which is a key element in the wording of the statute.
He said their petition was based on conjecture that out of the thousands of people they encounter in their work, it’s inevitable that someone will be confused.
Standridge pointed out that the plaintiffs’ affidavits show they have been mistaken as election workers.
“They have experienced it,” she said “They have affidavits that show people have mistaken us.”
That’s why Schlozman said there’s needs to be a “reasonableness component” for how the law is interpreted.
