A divided Kansas Supreme Court on May 31 issued a response to a lawsuit challenging the constitutionality of three election integrity laws stemming from the 2020 election, affirming in part and reversing in part lower court rulings on the long-standing dispute.
All three laws were created in 2021 in the aftermath of heightened concerns surrounding alleged fraud in the 2020 general election. Kansas Gov. Laura Kelly, a Democrat, vetoed the bills, but the Republican-led Kansas Legislature voted to override her veto.
One of the laws makes it a crime to falsely give the appearance of being an election official. A second requires election officials to verify signatures on advance ballot envelopes with signatures on file and, if there is a mismatch, to contact the voter for an opportunity to cure the defect. A third law prohibits anyone from delivering more than 10 advance ballots on behalf of other voters.
The Constitution Issue
In a 4–3 opinion, the Kansas Supreme Court overturned the 2023 appeals court decision, which held that voting under the Kansas Constitution is a fundamental right and, consequently, any government attempt to restrict this right must be subject to the highest level of scrutiny.If voting were found to be a fundamental right, according to the Supreme Court’s opinion, the government must prove that it has a “compelling interest” in regulating voting and that its voting laws are “narrowly tailored” to further that interest.
Instead, the state’s highest court maintained that voting is a “political right” under the Kansas Constitution, which allows for a lower legal bar for the government to enact voting measures.
Under this less strict standard of judicial review, the burden of proof shifts from the government to those raising the constitutional dispute, who must show that the voting laws “unreasonably burden the right to suffrage.”
“The right to vote is not an unenumerated natural right protected by section 1 of the Kansas Constitution Bill of Rights,” Justice Caleb Stegall wrote for the majority. “Rather, suffrage is universally understood as a political right.
The Ruling
Affirming that the state’s constitution does not recognize a fundamental right to vote, the Kansas Supreme Court weighed the constitutionality of the three voting laws at issue.The May 31 ruling found that the suing coalition, led by the League of Women Voters of Kansas, is likely to prevail on its claim that the law against impersonating an election official was unconstitutional. The lower court originally decided against blocking the law.
“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,” Justice Stegall wrote. “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.”
At the same time, a majority of the state Supreme Court’s justices agreed that the signature verification requirements are a “valid effort” to seek evidence that a person is a qualified voter. The justices sent the case back to the district court to determine whether this law and regulations implementing the statute meet the constitution’s guarantees of equal protection and due process.
As for the ballot delivery limit, the Kansas Supreme Court stated that the measure is constitutionally sound and allowed it to stand.
“We affirm the district court’s grant of defendants’ motion to dismiss on the claim that the ballot collection restriction is constitutionally infirm,” Justice Stegall wrote in the opinion, noting that the act of delivering a ballot is “not political speech or expressive conduct.”
The lawsuit’s defendants, Kansas Secretary of State Scott Schwab and Kansas Attorney General Kris Kobach, welcomed the ruling that largely favored the state.
“The justices got it right,” said Mr. Schwab, a Republican. “This ruling allows us to preserve reasonable election security laws in Kansas. Signature verification has been the law for over a decade. This vital security measure is essential to our election system and the integrity of every state.”
Praising the Supreme Court’s opinion as “well-reasoned,” Mr. Kobach said the ruling on the signature verification law confirmed that the Legislature has the constitutional authority to “establish proofs ensuring that voters are who they say they are.”
The Dissent
Three of the court’s seven judges offered dissenting opinions, particularly over the interpretation of the Kansas Constitution’s protection of the right to vote.“The court majority strips Kansans of our founders’ ultimate promise that the majority will rule and that the government it empowers will answer to its calls,” Justice Eric Rosen wrote. “It staggers my imagination to conclude Kansas citizens have no fundamental right to vote under their state constitution.”
Justice Rosen also took issue with the majority’s opinion on the restriction on ballot collection.
The League of Women Voters, he said, had demonstrated that many qualified voters’ voting access could be cut off, including voters in western Kansas, where mailboxes are “often centrally located in communities” far away from individual homes, and voters living on tribal lands, who may have to “travel for hours on unpaved roads” to mail services or election offices.
“The plaintiffs have pleaded facts sufficient to state a claim that the ballot collection restriction impairs the right to majority rule through the vote,” Justice Rosen argued. “I would reverse the district court’s dismissal of this claim.”
