VoteAmerica v. Schwab

671 F.Supp.3d 1230

VOTEAMERICA and Voter Participation Center, Plaintiffs, v. Scott SCHWAB, in his official capacity as Secretary of State of the State of Kansas;Kris Kobach, in his official capacity as Attorney General of the State of Kansas;and Stephen M. Howe in his official capacity as District Attorney of Johnson County, Defendants.

CIVIL ACTION No. 21-2253-KHV

United States District Court, D. Kansas

Signed May 4, 2023

Alice Huling, Pro Hac Vice, Aseem Mulji, Pro Hac Vice, Christopher Lapinig, Pro Hac Vice, Danielle M. Lang, Pro Hac Vice, Hayden Johnson, Pro Hac Vice, Campaign Legal Center, Washington, DC, Allison Walter, Washington, DC, Brooke Jarrett, Pro Hac Vice, Jonathan K. Youngwood, Pro Hac Vice, Meredith D. Karp, Pro Hac Vice, Simpson Thacher & Bartlett LLP, New York, NY, Mark P. Johnson, Dentons US, LLP-KC, Kansas City, MO, Nicole A. Palmadesso, Pro Hac Vice, Simpson Thacher & Bartlett LLP, Washington, DC, for Plaintiffs.

Bradley Joseph Schlozman, Scott R. Schillings, Hinkle Law Firm LLC, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge

Voter Participation Center ("VPC") brings suit for declaratory and injunctive relief against Scott Schwab in his official capacity as Kansas Secretary of State, Kris Kobach in his official capacity as Kansas Attorney General and Stephen M. Howe in his official capacity as District Attorney of Johnson County. Plaintiff alleges that the Personalized Application Prohibition in Section 3(k)(2) of HB2332 (codified as K.S.A. § 25-1122(k)(2)) violates its First and Fourteenth Amendment rights, U.S. Const. amends. I and XIV.¹ The parties have submitted the matter for a bench trial.² After careful consideration, based on largely stipulated facts, the Court makes the following findings of fact and conclusions of law, as required by Rule 52(a)(1) of the Federal Rules of Civil Procedure.

Findings Of Fact

Based on the stipulations of the parties, the Court makes the following findings of fact:

Personalized Application Prohibition

On February 10, 2021, the Kansas Legislature introduced HB 2332, which restricted the distribution of advance mail ballot applications to potential Kansas voters. On May 3, 2021, over the veto of Governor Laura Kelly, the Legislature enacted HB 2332. Plaintiff challenged two of HB 2332's provisions. Only one—the Personalized Application Prohibition—is still at issue in this lawsuit.

The Personalized Application Prohibition prohibits any person or organization (1) who solicits a registered voter by mail (2) from mailing to a registered Kansas voter a personalized advance mail ballot application (3) that is pre-filled with any information, such as the voter's name or address. K.S.A. § 25-1122(k)(2). A violation is a class C nonperson misdemeanor, which is punishable by up to one month in jail and/or fines. HB 2332 carves out exceptions by permitting a subset of state and county election officials to mail pre-filled advance mail ballot applications. H.B. 2332 § 3(k)(4).

The state argues that the Personalized Application Prohibition is necessary to (1) minimize voter confusion and disenfranchisement, (2) preserve and enhance voter confidence, and (3) reduce the rejection of inaccurate applications and inefficiencies in the election administration, and reduce potential voter fraud. Exhibit 34 (Doc #145-37) at 3-4. These rationales are not a part of the Legislative Record for HB 2332.

In February of 2021, the Office of the Kansas Secretary of State submitted written testimony to both the House and Senate Committees on Federal and State Affairs regarding the state's 2020 general election. Among other things, the testimony advised the legislature as follows:

Leading up to the 2020 general election, state and county election officials were inundated with calls from confused voters who submitted an advance by mail ballot application but continued to receive unsolicited advance ballot applications from third parties. This created a substantial workload increase for local election offices who had to process thousands of duplicate forms at a time when county election officials were preparing for a high turnout, statewide election, in the middle of a pandemic.

Exhibit Z (Doc. #151-26). On March 17, 2021, the Kansas Secretary of State submitted written testimony on HB 2332 which mentioned "incomplete mail ballot applications" but did not discuss pre-filled applications. Exhibit 32 (Doc. #145-31) at 3.

Voting In Kansas

Schwab is the Chief Election Officer for Kansas. As such, he oversees all Kansas elections and administers the state's election laws and regulations. Schwab also issues guidance and instruction to county election officers on election procedures and requirements. Kansas law permits Schwab to adopt rules and regulations related to advance voting, including the general form of advance voting ballots and applications for advance mail voting. K.S.A. §§ 25-1131, 25-1121(a)-(b), 25-1122d(c); see also HB 2332, Session of 2021 (Kan.), §§ 3(k)(2), (m).

The Kansas state voter registration database is known as the Election Voter Information System ("ELVIS"). Schwab is responsible for maintaining an online voter registration database. 52 U.S.C. § 21083(a)(1)(A). County election officials in all 105 counties in Kansas perform all additions, deletions and modifications of records in the database, and ELVIS reflects the voter data maintained by those county officials. When a county election office receives a voter registration application, election officials put that voter's registration information into the state's central database and thereby create a voter record in ELVIS. ELVIS reflects real-time changes that officials make to individual voter files.

To vote by mail in Kansas, a voter generally must complete an advance ballot application and return it to the county election office where the voter is registered. Voters on the permanent advance voting list or who vote by mail pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq., need not file advance ballot applications to vote by mail. The advance mail voting process includes multiple safeguards against fraud, and Kansas law criminalizes creation or submission of fraudulent advance mail ballot applications. See, e.g., K.S.A. § 25-2431.

If a voter timely submits an advance voting ballot application, a county election official processes the application, and if the county accepts the application, mails the voter an advance ballot packet.³ If a voter submits an inaccurate or incomplete application, county election officials must contact the voter and "cure" the application. If officials cannot contact the voter, the office will mail the voter a provisional ballot.

For the county election office to process an application without having to contact the voter to cure a mismatch or discrepancy, an advance voting ballot application must precisely match the information in ELVIS; officials may only overlook clear inadvertent mismatches (e.g., minor misspelling of a street name such as omitting the letter "e" or signing as "Jim" despite being registered as "James"). Once the county election office processes an advance ballot application, it documents in ELVIS the date it processed the application and transmitted the regular or provisional ballot to the voter. County election offices also document in ELVIS whether (and when) a voter has returned an advance ballot.

Voter Participation Center

Plaintiff's core mission is to promote voting among traditionally underserved groups—including young voters, voters of color and unmarried women—at rates commensurate with voters in other groups. Plaintiff believes that when more eligible voters participate in elections, it benefits democracy in the United States and that encouraging and assisting voters to participate in elections through mail voting ensures a robust democracy. Plaintiff believes that mail voting expands participation opportunities among its target voters—some of whom may not have the ability to vote in person or the resources to navigate the mail voting application process.

Plaintiff primarily uses direct mailings to encourage these voters to register and participate in the electoral process. VPC President and Chief Executive Officer Thomas Lopach testified that plaintiff believes sending personalized advance mail ballot applications "increases voter engagement," which Lopach thinks would be a broad associational base with potential voters in Kansas. Exhibit 7 (Doc. #147-5) at 167:22-168:15.⁴ Plaintiff considers that providing underserved groups the necessary personalized advance mail voting applications is key to effectively advocating its message.

Plaintiff encourages registered Kansans to participate in this manner by mailing voters a communication package that advocates for mail voting and provides a personalized advance mail ballot application. Through these communications, plaintiff communicates its message that advance mail voting is safe, secure, accessible and beneficial. Providing personalized applications to young voters, voters of color and unmarried women provides them simple access to advance mail ballot applications. Plaintiff tracks recipient responses to its communications and conducts randomized control trials to evaluate the effectiveness of its mailings.

Lopach and VPC Executive Vice President Lionel Dripps testified that plaintiff engages voting behavior and quantitative research professionals, including but not limited to Christopher B. Mann, associate professor of political science at Skidmore College, to analyze the efficacy of its direct mail programs. Plaintiff believes that the personalized applications are the most effective means of conveying its pro-mail voting message, and if the Prohibition stands, plaintiff must reconsider its communications with Kansas voters.

2020 Elections In Kansas

For the 2020 General Election, plaintiff and its 501(c)(4) sister...