A unanimous federal appeals court ruled that Kansas can prohibit political organizations from mailing partially completed absentee ballot applications, finding the restriction serves legitimate election administration interests without unlawfully suppressing political speech.

By yourNEWS Media Newsroom

A federal appeals court has upheld a Kansas law prohibiting third-party organizations from mailing voters partially completed absentee ballot applications, overturning a lower court ruling that found the restriction violated First Amendment protections. The decision allows the state to enforce a measure intended to reduce voter confusion, prevent application errors and ease administrative burdens on election officials.

In its Oct. 14 decision, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit unanimously concluded that Kansas lawmakers had legitimate reasons for adopting the prohibition and that the restriction did not unlawfully discriminate against organizations promoting voting by mail.

“Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional,” Circuit Judge Timothy Tymkovich wrote in the court’s published opinion.

The ruling resolves the latest stage of a legal dispute involving VoteAmerica and the Voter Participation Center, two nonprofit organizations that challenged a provision of House Bill 2332 after Kansas lawmakers enacted it in 2021 over Democratic Gov. Laura Kelly’s veto.

The legislation prohibits individuals and organizations soliciting voters by mail from completing any portion of an advance voting ballot application before sending it to a registered voter. Recipients must instead supply their own information when applying for a mail ballot.

Kansas officials defended the requirement as a response to problems experienced during the 2020 presidential election, when third-party organizations distributed hundreds of thousands of applications containing voter information obtained from public records and commercial databases.

According to the federal appeals court’s detailed findings, the Voter Participation Center and an affiliated organization mailed approximately 510,000 applications to Kansas residents during the 2020 election. Some contained outdated names, addresses or other information that did not match official voter registration records.

State officials estimated that approximately 3% of the organization’s voter database contained inaccuracies, suggesting that more than 15,000 applications may have included incorrect information. Election offices also received nearly 15,000 duplicate applications associated with the mailings.

Those discrepancies created additional work for local election officials, who were required to contact voters and resolve conflicting information before processing applications. An accurate application generally required three to five minutes to process, while applications needing corrections or duplicate verification could require 15 to 30 minutes or longer.

Some voters also mistakenly believed they were required to return applications they received, even if they had already requested a ballot. County officials reported receiving complaints and questions about why residents continued receiving unsolicited forms.

The organizations challenging the law maintained that personalized applications encouraged participation by simplifying the absentee voting process, particularly among groups historically underrepresented in elections.

In their original complaint, the plaintiffs argued that the statute “prohibits Plaintiffs from employing their most effective means of persuading voters to engage in the democratic process: mailing advance mail ballot applications to registered Kansas voters, complete with a pre-addressed return envelope, and personalizing those applications by prefilling the individual’s name and address information.”

U.S. District Judge Kathryn Vratil initially blocked enforcement of the prohibition, concluding that the organizations were likely to succeed in establishing a constitutional violation. She applied strict scrutiny, the most demanding standard of judicial review, requiring Kansas to demonstrate that its restrictions were narrowly tailored to serve a compelling government interest.

The 10th Circuit disagreed with that approach in 2024, determining that the restriction imposed a relatively limited burden on protected political expression and should ordinarily be evaluated under intermediate scrutiny.

The appeals court explained that the threat to free expression “is sufficiently small that (absent evidence that it was enacted for an improper purpose or justification) adequate protection is provided by intermediate scrutiny.”

The case returned to the district court for reconsideration. Vratil subsequently concluded that lawmakers had acted partly out of opposition to organizations advocating mail voting, finding that the legislation was adopted “because of disagreement with speech which advocates voting by mail.”

She determined that the prohibition was intended “to suppress speech which advocates voting by mail” and again blocked its enforcement, concluding that it failed both strict and intermediate scrutiny.

Wednesday’s appellate decision rejected that interpretation, finding insufficient evidence that Kansas lawmakers sought to suppress a particular political viewpoint.

“The district court found an improper purpose without evidence from the Prohibition’s justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting,” Tymkovich wrote.

The panel determined that reducing application errors, improving election administration and maintaining public confidence were legitimate government objectives. It also concluded that preventing third parties from completing applications addressed identifiable problems without substantially restricting their ability to encourage voting.

The judges emphasized that advocacy organizations remain free to distribute blank applications, include personalized information on separate documents and communicate with voters about absentee voting procedures.

The court further distinguished the prefilled application prohibition from another provision of the 2021 legislation that restricted out-of-state organizations from mailing absentee ballot applications to Kansas residents. That separate restriction remains blocked under an earlier agreement resolving the constitutional challenge to it.

“None of the other provisions of H.B. 2332 reveal an improper motivation that we might impute onto the State’s enactment of the Prohibition,” Tymkovich wrote.

The Voter Participation Center criticized the decision and indicated that further legal action remained possible.

“While we are disappointed with this reversal, the fight to protect Kansas voters is not over. We are reviewing [the] ruling and assessing our legal options,” the organization said.

In a subsequent public statement, the organization maintained that restricting personalized absentee ballot applications would make voter outreach more difficult and interfere with efforts to encourage participation.

Kansas Attorney General Kris Kobach, whose office defended the statute, had not responded to a request for comment at the time of the initial reporting.

The decision establishes that Kansas may regulate how third parties prepare and distribute official election application forms when the restrictions serve legitimate administrative purposes and leave meaningful opportunities for political advocacy.

The ruling does not prohibit absentee voting, restrict eligible residents from requesting mail ballots or prevent organizations from encouraging voters to participate. It specifically addresses whether outside groups may complete information on applications before distributing them.

With the lower court’s judgment reversed, Kansas can enforce the prefilled application prohibition unless further judicial proceedings alter the ruling. The case also provides guidance for future disputes involving the intersection of election administration requirements and First Amendment protections for voter outreach organizations.

Original article
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