Tenth Circuit revives Kansas ban on prefilled voter applications

The three-judge panel had previously rejected the lower court's view that a higher standard of scrutiny applied in the case.(CN) — A 10th Circuit panel on Wednesday reinstated a Kansas mail-in voting law which prohibits out-of-state groups from sending voters applications with prefilled information like the voter’s name or address, finding the “minimal” speech restriction under the law was permissible under the First Amendment.The Kansas Legislature passed the measure, HB 2332, in 2021 over the veto of Governor Laura Kelly, a Democrat in a heavily Republican state with a GOP-dominated Legislature. Two out-of-state voting groups — VoteAmerica and the Voter Participation Center — sued over the law, arguing the restrictions violated their First and 14th Amendment rights.The appeal to the 10th Circuit — the second in the case — came after a federal judge in Kansas applied strict scrutiny and found the Legislature enacted the law to suppress speech that supports mail-in voting.In Wednesday’s ruling written by U.S. Circuit Judge Timothy M. Tymkovich, a George W. Bush appointee, the panel found intermediate scrutiny to be the correct standard.“The district court found an improper purpose without evidence from the prohibition’s justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error,” Tymkovich wrote for the three-judge panel. “Because the prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the prohibition was constitutional.”Strict scrutiny is the most exacting standard of review of an action that encumbers a fundamental right, putting the burden on the government to show its actions were warranted, according to the Legal Information Institute at the Cornell Law School.Intermediate scrutiny requires that a law perpetuate an important government interest. It is less exacting than strict scrutiny.U.S. District Judge Kathryn H. Vratil handed the Voter Participation Center a temporary injunction in 2021, keeping the law from going into effect. Sunflower State officials agreed not to enforce the ban on out-of-state distributors in 2022, leaving the ban on personalized voting applications the only remaining dispute in this case.That provision prohibited groups from mailing Kansas voters applications with prefilled information like the voter’s name or address. Officials argued these rules minimized voter confusion, preserved voter confidence and reduced inaccurate applications.The Voter Participation Center — referred to as VPC in Wednesday’s ruling — claimed providing underserved groups with personalized applications was a core part of its mission to encourage people to register to vote and take part in the electoral process. Sending personalized ballot applications was “expressive conduct,” the groups argued, and rules against them “chilled” their speech.In a 2023 ruling, Vratil agreed and found the plaintiff’s activities were protected by the First Amendment. The state appealed, and the Tenth Circuit reversed and instructed Vratil to apply intermediate scrutiny to the prohibition unless she found improper motives. She found improper motives and the state appealed again, and again the 10th Circuit overruled Vratil.“Because the prohibition is adequately tailored under intermediate scrutiny, its minimal restriction on the content of VPC’s speech is permissible under the First Amendment,” Tymkovich wrote for the panel.The plaintiffs said Wednesday that the battle in Kansas would continue.“HB 2332 is a dangerous law, and that is why we took action,” said Tom Lopach, president and CEO of the Voter Participation Center in a statement. “The fight to protect Kansas voters is not over. We are reviewing today’s ruling and assessing our legal options. No matter what, we will continue to fight for the rights of all eligible voters in Kansas.”VoteAmerica called the ruling a disappointment but said it will continue helping Kansans vote by mail.“An ideal path forward would be for the state of Kansas to join the 27 other states that allow registered voters to request a mail ballot online. This common-sense solution would increase voter turnout while reducing election administration costs,” the group said in a statement.The defendants in the case — Kansas Secretary of State Scott Schwab, Kansas Attorney General Kris Kobach and Johnson County Attorney Stephen H. Howe — did not respond to requests for comment by press time.Senior U.S. Circuit Judge Michael R. Murphy, a Bill Clinton appointee. and U.S. Circuit Judge Joel McElroy Carson III, a Donald Trump appointee, joined the opinion.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads