League of Women Voters of Kan. v. Schwab

549 P.3d 363

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.

Nos. 124,378, 125,084

Supreme Court of Kansas.

Oral Argument held February 20, 2024.

Opinion Filed May 31, 2024.

West Codenotes

Validity Called into Doubt

Kan. Stat. Ann. § 25-2438(a)(2), (3)

Syllabus by the Court

1. The scope of K.S.A. 25-2438(a) extends to protected speech because its prohibitions extend to speech that is not fraudulent or deceptive.

2. The "right to vote" is 'not an unenumerated natural right protected by section 1 of the Kansas Constitution Bill of Rights.

3. Section 2 of the Kansas Constitution Bill of Rights declares the foundational political principle of delegated power from the people to their free government. This principle informs the entire edifice of law-making in a free society.

4. The Constitution itself is the originating act of delegation of power from the people to their free government. And the Constitution makes provision for ongoing, perpetual secondary acts of delegation. The Constitution creates the offices of free governments—that is the seats of delegated power, largely contained in the three great departments of the executive, legislative, and judicial branches. And it provides mechanisms by which the people continue to delegate their power to officers who will, for a time, occupy the constitutional offices.

5. The Kansas Constitution contemplates achieving section 2’s ongoing and perpetual delegation of power through varied mechanisms, including popular elections, limited elections, appointments, and succession.

6. Section 2 of the Kansas Constitution Bill of Rights does not address itself to these mechanisms of delegation. To find the controlling law of popular elections, we must look instead to the specific provisions in articles 4 and 5 of the Kansas Constitution.

7. The right to suffrage is an enumerated political right protected by article 5 of the Kansas Constitution. As an expressly enumerated right, article 5 provides the strongest possible constitutional protections.

8. The Legislature violates the Kansas Constitution’s article 5 right to suffrage—meaning a right to be a qualified elector in any election called by the state or its political subdivisions—if it imposes any extra-constitutional qualifications to the precisely defined right to suffrage.

9. Article 5 of the Kansas Constitution requires the Legislature to pass such laws as may be necessary for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage. The "proper proofs" contemplated by article 5, section 4 may include any reasonable provision for ascertaining who is entitled to vote—that is, who is a qualified elector under article 5.

10. To prevail on a claim that the article 5 right to suffrage under the Kansas Constitution has been violated, a plaintiff must show that the Legislature has imposed what amounts to a new, extra-constitutional qualification on the right to be an elector. If a law violates the article 5 right to suffrage, it is unconstitutional.

11. Simply because a law does not violate article 5 of the Kansas Constitution does not mean that any regime of proper proofs is permissible. In designing a process of providing proper proofs, the Legislature still must comply with other constitutional guarantees such as those of equal protection and due process.

12. To comply with due process, any proper proofs devised by the Legislature must include reasonable notice to the voter and an opportunity to contest the disqualification of otherwise valid absentee ballots and to cure deficiencies.

13. To comply with equal protection, any proper proofs, devised by the Legislature must be capable of being applied with reasonable uniformity upon objective standards.

14. K.S.A. 2023 Supp. 25-2437’s limitation on the number of advanced ballots that may be delivered by one person can in no way be characterized as an added qualification on the right to be an elector.

15. Restrictions on the number of advance ballots one person may deliver does not, in isolation, inhibit speech because delivering ballots is not speech or expressive conduct.

Review of the judgment of the Court of Appeals in 63 Kan. App. 2d 187, 525 P.3d 803 (2023). Appeal from Shawnee District Court; Teresa L. Watson, judge,

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 A. 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, Tumey & 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, Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the briefs for appellees.

Jeffrey M. Kuhlman, of Watldns Calcara, Chtd., of Great Bend, and Eric W. Lee, pro hac vice, of Judicial Watch, Inc., of Washington, D.C., were on the brief for amici curiae Judicial Watch, Inc., and Allied Educational Foundation.

Edward D. Greim, of Graves Garrett LLC, of Kansas City, Missouri, and Cameron T. Norris, pro hac vice, and Conor D. Woodfin, pro hac vice, of Consovoy McCarthy PLLC, of Arlington, Virginia, and Tyler R. Green, pro hac vice, of the same firm, of Salt Lake City, Utah, were on the brief for amicus curiae Honest Elections Project.

Sharon Brett and Karen Leve, of ACLU Foundation of Kansas, of Overland Park, were on the brief for amicus curiae American Civil Liberties Union of Kansas.

Ryan A. Kriegshauser, of Kriegshauser Ney Law Group, of Olathe, and Kaylan Phillips, pro hac vice, of Public Interest Legal Foundation, Inc., of Alexandria, Virginia, were on the brief for amicus curiae Public Interest Legal Foundation, Inc.

T. Chet Compton, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, and Bradley A. Benbrook, pro hac vice, and Stephen M. Duvernay, pro hac vice, of Benbrook Law Group, PC, of Sacramento, California, were on the brief for amicus curiae Lawyers Democracy Fund.

George Lewis, of Graves Garrett LLC, of Kansas City, Missouri, and Emmett E. Robinson, pro hac vice, of Robinson Law Firm LLC, of Cleveland, Ohio, were on the brief for amicus curiae Restoring Integrity and Trust in Elections.

Barry R. Grissom, of Grissom Miller Law Firm, LLC, of Kansas City, Missouri, and Derek S. Clinger, pro hac vice, of State Democracy Initiative at the University of Wisconsin Law School, of Madison, Wisconsin, were on the brief for amicus curiae Richard E. Levy and Stephen R. McAllister.

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

In 2021, several voting advocacy organizations and individuals filed suit against three new Kansas election laws alleging those laws violate various provisions of the Kansas Constitution. The laws at issue prohibit the false representation of an election official, prohibit election officials from counting advance ballots that do not have a signature or have a signature that an election official determines does not match the signature on file; and prohibit any person from collecting and returning more than 10 advance ballots for other voters. The ensuing litigation resulted in multiple appeals, which have now been consolidated. Though consolidated, this appeal now includes two distinct procedural postures. The false representation provision is postured at the temporary injunction stage, while the other two laws are postured at the motion to dismiss stage. We recite the precise procedural history at greater length below.

Today, we hold the plaintiffs have met their burden to demonstrate a likelihood of prevailing on the merits of their claim that the false representation statute is constitutionally infirm. Therefore, the district court erred in denying their request for a temporary injunction. We reverse and remand this claim to the district court to consider the remaining temporary injunction factors.

We also hold that the signature verification requirement is a valid effort by the Legislature to provide "proper proofs" of the right to be a qualified elector, which is permissible under this court’s precedent. But we remand to the district court to consider whether the statute and its implementing regulations comply with the constitutional guarantees of equal protection and due process.

Finally, we affirm the district court’s grant of defendants’ motion to dismiss on the claim that the ballot collection restriction is constitutionally infirm, because the restriction is not a new qualification on the right to be an elector, and because the proscribed activity—the delivery of ballots—is not political speech or expressive conduct.

Facts and Procedural Background

In 2021, the Kansas Legislature passed Senate Substitute for House Bill 2183 over the governor’s veto. The bill created three election laws, commonly referred to in this case as the "false representation provision," the "signature verification requirement," and the "ballot collection restriction."

The plaintiffs challenged two subsections of the false representation provision, which criminalizes

"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:

….

(2) engaging in conduct that gives the appearance of being...