League of Women Voters of Kan. v. Schwab

539 P.3d 1022

LEAGUE OF WOMEN VOTERS OF KANSAS, Loud Light, Kansas Appleseed Center for Law and Justice, Inc., and Topeka Independent Living Resource Center, Appellants,

v.Scott SCHWAB, in His Official Capacity as Kansas Secretary of State, and Kris W. Kobach, in His Official Capacity as Kansas Attorney General, Appellees.

No. 124,378

Supreme Court of Kansas.

Oral Argument Held February 1, 2023.

Opinion Filed December 15, 2023.

Elisabeth C. Frost, pro hac vice, of Elias Law Group LLP, of Washington, D.C., argued the cause, and Henry J. Brewster, pro hac vice, Tyler L. Bishop, pro hac vice, Justin Baxenberg, pro hac vice, Mollie A. DiBrell, pro hac vice, Richard A. Medina, pro hac vice, Marisa O'Gara, pro hac vice, and Spencer M. McCandless, pro hac vice, of the same firm, David Anstaett, pro hac vice, of Perkins Coie LLP, of Madison, Wisconsin, and Pedro L. Irigonegaray, Jason Zavadil, Nicole Revenaugh, and J. Bo Turney, of Irigonegaray, Turney & Revenaugh LLP, of Topeka, were with her on the briefs for appellants.

Bradley J Schlozman, of Hinkle Law Firm LLC, of Wichita, argued the cause, and Scott R. Schillings, of the same firm, Brant M. Laue, former solicitor general, Anthony J. Powell, solicitor general, and Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the briefs for appellees.

The opinion of the court was delivered by Stegall, J.:

The appellants—four non-profit groups aimed at maximizing political engagement in Kansas—sought a temporary injunction against K.S.A. 25-2438(a)(2)-(3), which makes it a severity level 7, nonperson felony to engage in "conduct that gives the appearance of being an election official" or conduct that "would cause another person to believe a person engaging in such conduct is an election official." Appellants contend the statute is overbroad, unconstitutionally vague, and results in the criminalization of their voter education and registration activities. To support their claims, they have asserted that during past events, observers at times believed they were election officials even though they always take measures to clearly identify themselves as private citizens. The State contends appellants' fear of prosecution is unfounded because the statute criminalizes only "knowingly" misleading someone into thinking one is an election official. No actual prosecutions have commenced against appellants.

The district court denied appellants' request for a temporary injunction after finding they could not establish a substantial likelihood of eventually prevailing on the merits. A split panel of the Court of Appeals dismissed appellants' claims for lack of standing, finding appellants failed to satisfy their burden to demonstrate an injury-in-fact because they are not at risk of prosecution under the statute. We granted appellants' petition for review. Today we hold that when the Legislature criminalizes speech and does not—within the elements of the crime—provide a high degree of specificity and clarity demonstrating that the only speech being criminalized is constitutionally unprotected speech, the law is sufficiently unclear to confer pre-enforcement standing on a plaintiff challenging the law. Such is the case with the statute at issue here.

FACTS

In 2021 the Kansas Legislature enacted House Bill 2183 which reads in relevant part:

"(a) False representation of an election official is knowingly engaging in any of the following conduct by phone, mail, email, website or other online activity or by any other means of communication while not holding a position as an election official:

(1) Representing oneself as an election official;

(2) engaging in conduct that gives the appearance of being an election official; or

(3) engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official." L. 2021, ch. 96, § 3 (codified at K.S.A. 25-2438 [a]).

Governor Laura Kelly vetoed the bill on April 23, 2021. The Legislature voted to override the Governor's veto, and the statute took effect on July 1, 2021.

The appellants—League of Women Voters of Kansas, Loud Light, Kansas Appleseed Center for Law and Justice, Inc., and Topeka Independent Living Resource Center—quickly challenged the new law. They sought a temporary injunction against subsections (a)(2) and (a)(3), claiming these provisions contravene their rights to free speech and association in violation of sections 3 and 11 of the Kansas Constitution Bill of Rights, are overbroad, and are unconstitutionally vague in violation of section 10.

Appellants maintain that (a)(2) and (a)(3) "turn on how conduct is perceived , rather than the actor's intent (or lack thereof) to create that perception." Appellants argued before the district court that although they always overtly identify themselves as volunteers from their respective organizations, given the nature of their work, individuals easily can—and often do—mistake them for county election officials.

Appellants submitted several affidavits in support of their claims. Ami Hyten, executive director of appellant Topeka Independent Living Resource Center, provided an example of one of the Center's recent voter engagement plans where the Center had generated an area mailing list of individuals who were not registered to vote, sent letters with voting information and official registration forms to those individuals, and then followed up by phone to offer support with the registration process or casting their ballot. Hyten expressed concern that if the Center continues to engage in these kind of activities—which involves "reproducing official state documents for the individuals [the Center] serve[s]"—the Center's volunteers risk prosecution under the new law, because "[a]s anyone who has worked on voter education activities long enough knows, voters may innocently mistake people who conduct the work we conduct as election officials."

Several of the other individuals who submitted affidavits reflected this concern—as individuals experienced in conducting voter engagement activities, they personally have experienced citizens mistaking them for elections officials. Davis Hammet, president and executive director of appellant Loud Light, described several of Loud Light's activities, which include running young voter registration drives, creating multi-media content about how to participate in elections, giving classroom presentations, and sending educational mailers to voters. In addition, Loud Light organizes ballot cure programs where it contacts voters whose ballots are challenged by county election officers—with a specific focus on voters who election officials had been unable to contact—for things like mismatched signatures, and educates the voters on how to cure their ballots. Hammet expressed concern about the new law because he personally has been mistaken for an election official in the past, "because voters innocently mistake people who are knowledgeable about voter registration and election procedures as election officials." Hammet described one such event that occurred while canvassing in Pittsburg, Kansas. At the event, the Crawford County Board of Elections had a voter registration booth next to another booth with an organization also conducting voter registration, and Loud Light volunteers were also present walking through the crowd registering voters near those booths. Hammet described how many individuals he interacted with during the event asked whether he was with the county election office. He always clarified that he was not, but asserted that "had they never asked, [he was] not certain they would have ever reached the correct conclusion."

Hammet further described how Loud Light often receives supplies from the Shawnee County Board of Elections to help in their voter registration drives. These supplies include voter registration forms, banners advertising voter registration materials, and other materials to help facilitate the events, which Loud Light utilizes alongside their own supplies. Hammet fears that continuing to use these supplies could leave an impression with voters that these drives are run by the local county board, but that discontinuing use of these supplies would make their drives less effective.

Jacqueline Lightcap, co-president of appellant League of Women Voters of Kansas, also described the various events the Kansas League puts on throughout the year, including at local high schools and community colleges, local libraries, public housing offices, YMCAs, local utility offices, and state and county fairs. Lightcap highlighted a handful of specific events, including describing a booth set up by the Wichita-Metro League at the annual Wichita Riverfest. The booth—located directly next to the Sedgwick County Election's Office booth—was decorated with banners and signs encouraging individuals to register to vote. Lightcap's affidavit asserted that while the Sedgwick County booth displayed its voting machines, it did not register individuals to vote; that task was delegated solely to the Wichita-Metro League. Lightcap further stated that the Metro League members were often intermingled and talking with the local elections staff during the festival. The proximity of the booths, as well as the friendliness between the volunteers at each booth, could cause a person strolling by during the busy festival to have easily mistaken the two booths for one another or perceive it as one large installation from the local board, according to Lightcap.

Lightcap expressed additional concerns about the Kansas League's current practice of relying on and promoting websites and information put together by Kansas local and state elections officials. Given the Kansas League's wide reach—for example, in 2020, the Kansas League coordinated 354 total election-related activities which yielded 7,766 unique voter contacts and registered over 2,000 voters—Lightcap expressed concern that inevitably some individuals may...