When is an application free speech?

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The legal battle over a new state election law could turn on whether an application for a mail ballot is free speech.

Lawyers for the state and two groups that promote voting by mail squared off in federal court Friday over a new state law that bans anyone who does not live – or is domiciled – in Kansas from mailing advance ballot applications to voters.

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

The two groups – VoteAmerica and the Voter Participation Center – are asking U.S. District Judge Kathryn Vratil to temporarily block the law, which the Legislature passed last session over the objections of Democratic Gov. Laura Kelly.

Both sides presented several hours of evidence during a hearing last month and returned to the courtroom Friday to make their closing oral arguments.

Lawyers for VoteAmerica and the Voter Participation Center argued that the packets they send Kansas voters – an application for a ballot along with material that promotes voting by mail – is protected core political speech.

The argue that the bill passed by the Legislature stifles political speech and activity in violation of the U.S. Constitution.

They say that the message the packets convey – that voting by mail is easy and convenient – is free speech that is protected by the Constitution.

“They are presenting a certain political view,” said Jonathan Youngwood, one of the lawyers representing the two companies challenging the law in court.

Youngwood argued that the state presented no evidence to show that the law was needed to prevent voter fraud and confusion.

He said the state also failed to show that mail ballot applications sent from out of state were causing more administrative burdens for local election offices.

The law doesn’t start until Jan. 1, but the plaintiffs are urging the judge to take action now so they can get ready for the election work ahead in 2022.

The attorney representing the state – Bradley Schlozman – argued that the application for the ballot itself doesn’t constitute free speech.

Making an argument that seemed to leave Vratil puzzled, Schlozman contended that the application in the packet needs to be considered separately from the promotional material that advocates voting by mail.

Schlozman argued that the promotional material in the packet may be free speech, but  not the application – something he characterized as a form of “conduct.”

“Plaintiffs don’t get to decide what conduct they use to carry out their free speech,” Schlozman told Vratil.

The judge seemed to have difficulty grasping the idea, pressing Schlozman repeatedly to explain how the application was not speech.

“The fact that it has words doesn’t make it speech,” Schlozman said of the application.

The state’s attorney, whom Vratil peppered with questions throughout his closing remarks, argued that the application is not speech becasue it’s not “expressive.”

However, Youngwood argued that the packet has to be considered in its entirety as free speech, sending a message that voting can be convenient and easy.

“It is part of what the message is,” Youngwood said.

During Friday’s nearly two-hour hearing, Vratil seemed to struggle with Schlozman’s arguments, including one that suggested that the state didn’t have to defend its rationale for the laws it passes.

At one point, Schlozman said the state didn’t have a legal duty to defend its reasons for passing a law, an idea Vratil pushed back against.

Vratil said she never heard of an intance where a court would take a state’s arguments on its face, suggesting that it would make the whole court process irrelevant.

At another point on Friday, Vratil became frustrated with Schlozman, ordering him to confine his oral arguments to the facts established during the evidentiary hearing held last month.