The Kansas Supreme Court has ruled that voting is not a fundamental right protected by the Kansas Constitution.
The decision on voting rights Friday could weaken legal challenges to future voting restrictions in Kansas and embolden the Republican-dominated Legislature to more aggressively pursue new voting laws.
The majority opinion reversed a 2023 appeals court decision that recognized any restrictions on the fundamental right to vote would be subject to the highest legal bar for evaluation, or strict scrutiny.
Justice Caleb Stegall wrote for the majority, saying voting is instead a “political right” under the Kansas Constitution that has a lower bar for regulation than fundamental rights.
“But just because the right to vote is not protected in our Bill of Rights does not mean that constitutional voting guarantees are somehow weak or ineffective,” Stegall wrote. “Quite the contrary.”
Stegall wrote that for a voting law or regulation to be found unconstitutional, it must pass the “Butts test,” which means “the law must be shown to unreasonably burden the right to suffrage.” If voting were found to be a fundamental right, the burden would be on the government to show new voting laws are are narrowly tailored and necessary to achieve a compelling state interest.
Three justices wrote dissenting opinions, arguing the majority opinion overturns longstanding case law and will have wide-ranging consequences for voting rights in Kansas.
Republican state legislatures across the country have pursued additional restrictions on mail-in, ballot collections and advance voting since former President Donald Trump repeatedly and falsely claimed the 2020 presidential election was stolen. Kansas Secretary of State Scott Schwab, a Republican, has maintained that Kansas had fair, secure elections in 2020.
The Kansas Legislature passed three voting laws in 2021 that were challenged by the League of Women Voters, Loud Light and other civic groups, who claimed the laws violated the right to free speech, stifled the right to vote, and violated the constitutional guarantees of equal protections and due process. The Supreme Court’s ruling addressed these laws.
One law would make it a felony to impersonate an election official. Another would add new signature matching requirements for absentee ballots. The court’s 96-page opinion ruled these laws did not inhibit free speech nor did they place additional qualifications for voters to meet. Both were sent back to lower courts.
A third law, which was upheld by the court, restricts the number of absentee ballots that could be delivered on the behalf of others to 10.
Kansas Attorney General Kris Kobach and Schwab, the defendants, touted the rulings as a victory for election integrity.
The Republican chair of the House Elections Committee celebrated the majority opinion, calling it a win for “common sense” election regulations.
“Yes, you have a right to vote, but it’s a right that is uniquely unlike any of the other rights because the exercise is enabled by the government,” Rep. Pat Proctor, a Leavenworth Republican and chairman of the House elections committee said. “And so if you apply a strict-scrutiny test, you really tie the hands of the Legislature to put common sense measures in place to tell election officials how to administer elections.”
Proctor said Friday’s decision clears the way for the Legislature and secretary of state to pursue further voting regulations, such as additional restrictions and requirements surrounding ballot drop boxes.
“If the dissenting opinions had prevailed, it would have made it nearly impossible for us to pass any voting laws,” Proctor said. “The strict-scrutiny standard would have basically set the stage to remove signature requirements and to remove voter ID requirements.”
Rep. John Carmichael, a Wichita Democratic member of the House Judiciary Committee, had a different reaction to the decision.
“Most people would expect that the right to exercise your franchise as a citizen to vote should be, and is, a fundamental right and, therefore, it should be subject to strict scrutiny, requiring of course that the government prove that there is really no less intrusive way of accomplishing the governmental purpose. By using a lesser test, it means that, frankly, some members of Kansas Legislature may find themselves with free rein to continue to pass laws that make it more difficult for people to vote or make it more difficult for people to participate in the process.
“If this lower standard of scrutiny is in fact the test by which our right to vote is protected, then this endangers everyone’s right to vote,” Carmichael said. “And that is a big deal.”
Impersonating election official
The Supreme Court opened the door for a lower court to block the state from enforcing the false representation of an election official law. The lower court originally decided against blocking it.
“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,” 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.”
After Republicans overrode Democratic Gov. Laura Kelly’s veto of the policy, the groups halted their voter registration efforts in 2021.
Martha Pint, the president of the League of Women Voters of Kansas who challenged the false representation law, said the ruling confirms their allegation the law is “likely unconstitutional.”
“For three years now, Kansas League of Women Voters volunteers have been forced to severely limit their assistance of voters due to this ambiguous and threatening law,” Pint said. “The League’s critical voter assistance work is not a crime, and we are confident this provision will be quickly blocked when the case returns to the district court.”
Davis Hammet, the president at Loud Light, echoed that sentiment.
“We are glad the Kansas Supreme Court unanimously ruled the 2021 voter suppression law overly broad in how it criminalized our free speech right to register voters,” Hammet said. “Our team looks forward to a speedy resolution allowing us to resume the critical work of registering the next generation of Kansans to vote.”
Signature verification
Although the Supreme Court court did agree that signature verification was a “valid effort” by the Legislature to provide proof that a voter is valid, justices sent the case back to district court to determine whether the law complied with the constitution’s guarantees of equal protection and due process. That clause prevents state governments from enacting discriminatory criminal laws and requires notice to be given to those the law affects.
Schwab, a defendant, said in a press release that the “judges got it right” and that signature verification would keep elections secure.
“This ruling allows us to preserve reasonable election security laws in Kansas,” Schwab said. “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 vote.”
Ami Hyten, the director at the Topeka Independent Living Resource Center, one of the groups who challenged the laws, said she was pleased the court would give disabled and aging voters an opportunity to argue against the law in court.
“Signature matching requirements unfairly disadvantage people whose signatures may be impacted by muscular weakness or spasms, low or declining vision, or the aging process. In other words: people who are disabled or aging,” Hyten said.
Kobach, another defendant, said the signature requirement would ensure voters are who they say they are.
“The Kansas Supreme Court’s well-reasoned opinion confirmed that the legislature has the constitutional authority to establish proofs ensuring that voters are who they say they are,” he said in a press release. “And that is exactly what Kansas’s signature verification requirement is.”
Delivering absentee ballots
The court allowed one law to stand that civic groups argued unfairly disenfranchised sick or disabled voters who rely on others to deliver their ballots to the polls. The law restricted the number of absentee ballots an individual could deliver on behalf of another voter to 10 ballots.
The majority opinion issued by the court asserted ballot collection and returns were not a form of political speech or free expression and it dismissed the claim that the law was “constitutionally infirm.”
“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,” Stegall wrote.
Pint said the decision on the ballot collecting law did “not provide the relief” they were looking for in fighting alleged voter disenfranchisement.
“Let’s be clear: this law is meant to target the rights of Kansans to make their voices heard,” Pint said. “The League will continue to empower and aid Kansas voters in whatever way we can.”
Kobach, a Republican, said the upholding of the ballot collection law represented a victory for election integrity.
“The Court was also correct in rejecting the argument that limiting the number of ballots a person can deliver somehow restricts free speech,” he said. “Kansas’s law limiting the number of ballots a person delivers to ten is an important way of limiting ballot harvesting.”
Blistering dissent
Justices Eric Rosen, Dan Biles, and Melissa Standridge agreed with the majority decision to overturn the lower court’s rulings but strongly disagreed with the majority’s interpretation of the constitution.
They each wrote blistering dissents against the ruling that Kansans have no fundamental right to vote.
“Today 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,” Rosen wrote in a dissenting opinion. “It staggers my imagination to conclude Kansas citizens have no fundamental right to vote under their state constitution. Admission to the United States was predicated on a constitutional guarantee of a republican form of government. Over 160 years later, this court removed that guarantee. I cannot and will not condone this betrayal of our constitutional duty to safeguard the foundational rights of Kansans.”
Standridge called Stegall’s determination that voting is not a fundamental right “a troubling decision with far-reaching implications.”
She wrote that “the majority departs from this court’s long-standing precedent recognizing voting as a substantive right grounded in the essence of a republican form of government” and “today’s decision could alter fair elections and deprive the people of their right to participate in the political process for the foreseeable future.”
Biles wrote that he “very much agree(s) with Rosen and Standridge and that “the Kansas Constitution explicitly sets forth — and absolutely protects — a citizen’s right to vote as the foundation of our democratic republic, so it is serious business when a government official in one of our 105 counties rejects an otherwise lawful ballot just by eyeballing the signature on the outside envelope.”
Justices Marla Luckert, Evelyn Wilson and Keynen Wall Jr., did not attach their names to the decision but would have each had to agree with Stegall to reach a majority opinion.
Teresa Woody, the litigation director at Kansas Appleseed, a civic group that challenged the election laws, said the court’s finding that Kansans do not have a fundamental right to vote is disappointing.
“While Kansas Appleseed is pleased the Court recognized the unconstitutionality of the election impersonation statute and we look forward to proving that the signature matching provision violates the equal protection clause at the trial court, we are disappointed that the majority did not find the fundamental protections outlined in the dissent,” she said in a joint press release.
Recent Republican efforts on voting
Proctor said recent voting regulations by Republicans are an attempt to restore faith in the election process for citizens who have “crisis of confidence” in the election results.
Since 2020, Kansas Republicans have sought to change the state’s election systems to combat unfounded claims of election fraud nationwide and in the state.
This year, they did not override Kelly’s vetoes of two bills changing the state’s election systems.
One would have added a label on advance ballots warning voters it is illegal to deliver more than 10 ballots on behalf of other voters and would have recorded the deliverer’s personal information. It also would have enacted more signature requirements for those delivering ballots for someone else.
Republicans did not attempt to override that bill.
The other would have prevented government officials from accepting federal funding related to elections in an attempt to limit Democratic presidential administrations such as President Joe Biden’s from directly giving money to the state’s election administration practices. Those include activities like voter registration.
Republicans were unable to override Kelly’s veto of the federal funding bill, falling short by a few votes.
Kansas lawmakers this year also considered and then rejected a law that would have overhauled the state’s election system by banning electronic voting machines and remote ballot boxes and eliminating the three-day grace period for mail-in votes.
This story was originally published May 31, 2024 2:16 PM.