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Four voter advocacy organizations are asking appeals court judges to block a Kansas election law ahead of the August primary.
The League of Women Voters Kansas, Loud Light, Kansas Appleseed and Topeka Independent Living Resource Center are asking the Kansas Court of Appeals for an injunction against provisions in HB 2183 they contend criminalize voter registration drives.
Hal Brewster, attorney for the plaintiffs, said the groups have stopped much of their work out of fear of prosecution.
“The other night when KU cut down the nets in New Orleans and there was a party like you’ve never seen on Mass Street in Lawrence, Loud Light should have been out there registering voters, and they weren’t,” Brewster said. “They weren’t there because they thought they would get prosecuted. And that is in a county where the DA has said she’s not going to prosecute because it’s unconstitutional.”
Secretary of State Scott Schwab and Attorney General Derek Schmidt are the defendants in the case. They were represented by attorney Brad Schloz man.
Backers of the law contend that it does not criminalize voter registration drives, and Schlozman accused Brewster of making the case “about distraction and strawmen.”
The legal challenge focuses on a piece of the bill that criminalizes the impersonation of an election official, including conduct that gives the appearance of being an election official or causes someone to believe that.
The Legislature overrode Gov. Laura Kelly’s veto of the bill last session. In addition to the impersonation crime, it contained provisions related to mail ballot postmarks, advance ballot signatures, deadlines, voter registration reports, delivery of advance ballots, electioneering and election office funding.
Some of those provisions are being challenged in the lawsuit but are not the subject of the injunction request.
Do voter drives break Kansas law?
Brewster said the statute is an attack on free speech.
“The civic life of Kansans has, since last July, been ground to a complete standstill,” Brewster said. He said the plaintiffs are “the bread and butter, the heart and soul of civic engagement in the state of Kansas,” but they have ceased much of their work.
“My clients’ acts violate the plain language of the statute,” Brewster said.
Brewster said defense filings agree with the plaintiffs, that if someone acted in a way that they knew would cause other people to believe they are an election officer, they may be violating the law.
“It is not out of some intent to deceive the public that the Kansas League of Women voters is some election official,” Brewster said.
Judge Lesley Isherwood suggested the intentions would “insulate your clients from prosecution.”
“I’m struggling to see how it is that your clients are at direct risk of prosecution when that is not their intent,” Isherwood said.
Brewster argued that volunteers know their actions unintentionally lead some people to believe they are election officials.
Do voters confuse volunteers with election officials?
Judge Stephen Hill pointed to affidavits from volunteers who said people sometimes mistake them for election officials at voter registration drives.
“That seems to me an admission right now in front of all of us that they’re in violation of this statute,” Hill said.
“What they are doing does not violate the statute,” Schlozman responded.
He argued “there has to be a consciousness of wrongdoing in these cases.”
Schlozman said while some people may be confused, they are not being reasonable. At various points, Schlozman referred to Kansans who believe voter drive volunteers are election officials as “the least sophisticated amongst us,” “naïve” and “eggshell,” among other terms.
“I heard Mr. Schlozman call the voters of Kansas three things during his arguments: naïve, the least sophisticated among us and an eggshell plaintiff, which if you went to law school you know is not a compliment,” Brewster said.
Schlozman said the law would apply to a mailer that has the county seal, the election commissioner’s name and “all the hallmarks of a formal document coming from the county election office, and no where in there is there any reference that it comes from a private organization.” He said it would be a “slightly more difficult situation” if there were fine print acknowledging who sent the mailer.
Hill noted that voter registration drives often use blank forms picked up from an election office.
“That’s pretty official, isn’t it?” Hill said.
Schlozman argued it isn’t reasonable or objective for a voter to believe people at registration drives or going door-to-door handing out official ballot applications are election officials.
The words “reasonable” and “objective” are not written in the statute. But the word “knowingly” is, which has a legal definition invoking reasonableness.
Shawnee County District Court judge rejected injunction request
The issue on appeal is the injunction request, which Shawnee County District Court Judge Teresa Watson rejected in September. She wrote that clearly identified groups would not run afoul of the law because of the meaning of “knowingly.”
The plaintiffs disagree and want the appeals court to block prosecutors from filing charges as the case progresses.
“This law is extremely dangerous,” Brewster said. “I don’t need to tell any of you right now that this year is a very consequential year in Kansas elections.
“You have the primary, you have the ballot measure on the constitutional issue of abortion in August, and then you have a governor up for election, you have all of the constitutional offices of Kansas up for election, not to mention all four congressional candidates. If my clients are not allowed to go out and organize and register and engage, this state is going to suffer.”
Schlozman argued there is no threat of prosecution.
“The bottom line is there is no threat whatsoever to the plaintiffs, let alone an imminent threat, which is what the requirement is under a preliminary injunction motion,” he said.
Does AG’s response to DA constitute a threat?
Brewster said his clients face “a credible threat of prosecution.”
He pointed to an Aug. 2 attorney general news release, which came in response to Douglas County District Attorney Suzanne Valdez’s announcement that she wouldn’t prosecute violations of the law. She said it “threatens to create felons out of dedicated defenders of democracy.”
Schmidt said his office would take up such prosecutions.
“State election-integrity laws will be enforced and election crimes, like all other crimes, will be prosecuted when warranted by the evidence,” he said.
Valdez responded that Schmidt’s statement was “a threat” to voter advocates.
“He said very loudly to the people of Kansas and every DA that was listening, I’m going to prosecute under this law,” Brewster said.
Schlozman said “there’s no chilling” effect because the defendants have already said the activities are not illegal, yet plaintiffs “won’t take yes for an answer.” Hill appeared to disagree.
“If you’re going to send me to the penitentiary for 17 months and fine me up to $100,000, you’ve got my interest up,” Hill said. “I don’t want to do anything that would put me into jeopardy like that. That seems to have a chilling effect on me.”
Schlozman pointed to a document from Schmidt promising not to prosecute the plaintiffs. Brewster said Schmidt will be out of office since he is running for governor, and that document does not bind his successor or county prosecutors.
Schlozman called the Douglas County DA statement “irresponsible” and “reckless.” He said Schmidt’s response that he would prosecute cases if the evidence warranted it amounted to “a big meow, in terms of the significance of it.”
“If the tables were turned and the DA of Douglas County in liberal Lawrence went after a conservative group of college students trying to organize college Republicans,” Brewster said, “I do wonder if the (attorney general’s position) would be a little bit different in this case.”
Jason Tidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at [email protected]. Follow him on Twitter @Jason_Tidd.
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