The Kansas Supreme Court on Friday ruled on multiple challenges to a 2021 election law, siding with state officials on some provisions while reviving challenges to others and signaling that at least one may be halted before this year’s general election.
But the majority opinion on the ballot signature verification bill said the right to vote is not contained in the Kansas Constitution’s Bill of Rights, drawing sharp dissent from three of the Supreme Court’s seven justices.
The bill would require election officials to check signatures on advance mail-in ballots against voter registration records. The state Supreme Court overturned a lower court’s decision to dismiss the case, but the majority rejected arguments by voting rights groups that the bill violated the state’s constitutional right to vote.
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In fact, Justice Caleb Stegall, who wrote the majority opinion, said the dissenting justices wrongly accused the majority of ignoring past precedent and that the Court had not identified a “fundamental voting right” in state constitutions.
“It simply does not exist,” Stegall wrote.
“It is beyond my imagination to conclude that Kansans do not have a fundamental right to vote under our state Constitution,” Justice Eric Rosen wrote in dissent.
“I cannot and will not tolerate this betrayal of our constitutional duty to protect the fundamental rights of Kansans,” Rosen added.
Meanwhile, the Supreme Court unanimously sided with opponents of a separate provision that would make it a crime to impersonate an election official. Voting rights groups, including the League of Women Voters of Kansas and the nonprofit Loud Right, argued that the measure stifles free speech and the right to register to vote because some people might mistakenly assume volunteers are election workers, putting them at risk of criminal prosecution.
A Shawnee County District Court judge had earlier denied the group’s request for an emergency injunction, finding that impersonating a public official is not protected speech.
Former Kansas Secretary of State Kris Kobach answers questions from the moderator during a Kansas Chamber of Commerce event at the Embassy Suites by Hilton, Wednesday, Sept. 7, 2022, in Olathe. (Kansas City Star via Getty Images)
But the Supreme Court nitpicked at the new law, noting that there is no requirement for prosecutors to prove that voter registration volunteers intended to misrepresent or deceive as election officials, and therefore it “criminalizes honest speech” that is inevitably subject to “occasional misunderstandings,” Justice Stegall wrote in the majority opinion.
“That way, we can catch protected speech in the net,” Stegall said.
Because a lawsuit challenging the constitutionality of the false contracting law appears likely to succeed, the state Supreme Court has ordered a lower court to reconsider issuing an emergency injunction against the law.
“For three years, League of Women Voters of Kansas volunteers have been forced to severely restrict their voter assistance efforts because of this vague and intimidating law,” said Martha Pinto, president of the league. “Our important voter outreach work is not a crime, and we are confident that this provision will be blocked quickly when this case returns to the district court.”
Loud Right Executive Director Davis Hammett said he hopes the lower courts will “stop the irreparable harm caused daily by this law and allow voter registration to resume before the general election.”
Neither Kansas Secretary of State Scott Schwab nor state Attorney General Kris Kobach responded to requests for comment on that portion of the Supreme Court’s decision.
Instead, Schwab and Kobach, in their joint statement, focused on the Supreme Court’s language strengthening signature verification laws and its upholding of a provision limiting individuals to collecting up to 10 advance ballots to submit to election officials.
“This ruling ensures that reasonable election security laws are upheld in Kansas,” Schwab said.
Supporters say the ballot-harvesting restrictions combat “ballot harvesting” and limit voter fraud. The Republican-led state Legislature passed them over a veto by Kansas Democratic Gov. Laura Kelly. Critics say they’re a Republican response to baseless claims that the 2020 election was invalid, claims that have sparked a wave of misinformation and voter suppression laws across the country.
Last year, the Kansas Court of Appeals reopened a case challenging the ballot-harvesting restrictions and signature verification as infringing on voting rights, but the Supreme Court upheld the restrictions, finding that ballot-harvesting is outside the scope of free speech, saying “voters have many options for getting their ballots to them.”
Kobach defended the majority’s opinion as “well founded” and found that state legislatures have the constitutional authority to establish evidence “to verify that a voter is who they say they are.”
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“And that’s exactly the signature verification requirement in Kansas,” Kobach said.
