The Kansas Supreme Court offered a mixed bag Friday in a ruling that combined several challenges to a 2021 election law, siding with state officials on one provision, reviving challenges to others and allowing at least one will be stopped before this year's general election. .
But it was the majority opinion of the signature verification measure — which found that voting rights are not enshrined in the Bill of Rights of the Kansas Constitution — that drew fervent criticism from three of the court's seven justices.
The measure would require election officials to match signatures on mail-in ballots with a person's voter registration. The state Supreme Court reversed a lower court's dismissal of that lawsuit, but the majority rejected voting rights groups' arguments that the measure violates the state's constitutional right to vote.
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In fact, Justice Caleb Stegall, writing for the majority, said the dissenting justices wrongly accused the majority of ignoring past precedents by saying the court failed to identify a “fundamental voting right” in the state Constitution.
“It's just not there,” Stegall wrote.
Judge Eric Rosen, one of three who dissented, fired back: “It is beyond my imagination to conclude that citizens of Kansas do not have a fundamental right to vote under their state constitution.”
“I cannot and will not tolerate this betrayal of our constitutional duty to protect the fundamental rights of Kansans,” Rosen added.
Conversely, the Supreme Court unanimously sided with challengers to another provision that makes it a crime for someone to appear to be an election official. Voting rights groups, including the Kansas League of Women Voters and the nonprofit Loud Light, argued that the measure stifles freedom of speech and their ability to register voters because some could wrongly assume that volunteers are election workers, leaving them are at risk of criminal prosecution.
A Shawnee County District Court judge had previously denied the groups' request for an emergency injunction, saying that impersonating a public official is not protected speech.
Former Kansas Secretary of State Kris Kobach answers questions from a moderator during a Kansas Chamber of Commerce event at the Embassy Suites by Hilton on Wednesday, September 7, 2022 in Olathe. (Kansas City star via Getty Images)
But the Supreme Court found fault with the new law, noting that it contains no requirement that prosecutors show a volunteer's intent to misrepresent or mislead people into believing they are an election official , and that it thus “criminalizes honest speech” where “Occasionally misunderstandings will occur,” Stegall wrote in the majority opinion.
“As such, it sweeps protected speech into its net,” Stegall said.
Because the lawsuit over the constitutionality of the false impersonation law is likely to succeed, the state Supreme Court has ordered the lower court to reconsider issuing an emergency injunction against it.
“For three years, Kansas League of Women Voters volunteers have been forced to severely limit their assistance to voters because of this ambiguous and threatening law,” said chapter president Martha Pint. “The League's critical voter assistance work is not a crime, and we are confident this provision will be quickly blocked when the case returns to district court.”
Loud Light director Davis Hammet said he hopes the lower court will “stop the irreparable damage caused every day by the law and allow us to resume voter registration before the general election.”
Neither Secretary of State Scott Schwab nor Attorney General Kris Kobach responded to requests for comment on that part of the Supreme Court's ruling.
Instead, in a joint statement, Schwab and Kobach focused on the Supreme Court's language strengthening the signature verification law and enforcing a provision that says individuals may not collect more than 10 ballots in advance to submit to to submit to election officials.
“This ruling allows us to enforce reasonable election security laws in Kansas,” Schwab said.
Proponents have argued that restricting ballot harvesting combats “ballot harvesting” and limits voter fraud. The Republican Party-led Legislature passed it over a veto by Democratic Kansas Governor Laura Kelly. Critics have said it is a Republican response to baseless claims that the 2020 election was not valid, leading to a wave of misinformation and voter suppression laws across the country.
Last year, the Kansas Court of Appeals reinstated a lawsuit challenging restrictions on ballot harvesting and signature verification, saying both affect voting rights. But the Supreme Court upheld the limit on ballot harvesting, saying that “voters have numerous options for casting their ballots” and that ballot harvesting does not fall within the parameters of free speech.
Kobach defended the majority opinion as “well-reasoned” and affirmed that the legislature has the constitutional authority to create evidence “to ensure that voters are who they say they are.”
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“And that's exactly what Kansas's signature verification requirement is,” Kobach said.
