State Supreme Court Majority Says Kansas Constitution Does Not Include a Right to Vote

The ruling from the Kansas Supreme Court on Friday presented a combination of outcomes regarding various challenges to a 2021 election law. While the court supported state officials on one provision, it also reopened challenges to other provisions. As a result, there is a possibility that at least one challenge could be halted before the upcoming general election later this year.

The majority opinion of the ballot signature verification measure stated that the Kansas Constitution’s Bill of Rights does not enshrine a right to vote. However, this viewpoint was met with strong dissent from three of the court’s seven justices.

The measure mandates that election officials compare the signatures on advance mail ballots with an individual’s voter registration record. Although the state Supreme Court overturned a lower court’s ruling to dismiss the lawsuit, the majority dismissed the claims from voting rights organizations that the measure infringes upon state constitutional voting rights.

Justice Caleb Stegall, in his majority opinion, refuted the dissenting justices’ claim that the majority disregarded previous rulings. He emphasized that the court had not recognized a “fundamental right to vote” in the state constitution.

Stegall expressed that the presence of it is simply nonexistent.

Justice Eric Rosen, one of the three dissenting voices, responded sharply, expressing his disbelief, stating, “It is truly astonishing to me to suggest that the citizens of Kansas do not possess a fundamental right to vote as guaranteed by their state constitution.”

“I cannot and will not support this betrayal of our constitutional responsibility to protect the fundamental rights of Kansans,” Rosen emphasized.

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In contrast, the challengers of another provision that criminalizes appearing as an election official received unanimous support from the high court. Voting rights organizations, such as the Kansas League of Women Voters and the nonprofit Loud Light, contended that this measure stifles freedom of speech and hinders their ability to register voters. They argued that the provision could lead to misperceptions where volunteers are mistaken for election workers, consequently exposing them to potential criminal charges.

The request for an emergency injunction made by the groups was previously rejected by a Shawnee County District Court judge. The judge stated that impersonation of a public official does not fall under the category of protected speech.

The high court criticized the new law for its lack of a requirement that prosecutors demonstrate intent on the part of a voter registration volunteer to deceive individuals by posing as an election official. As a result, the law is seen as penalizing genuine expression and potentially leading to “occasional misunderstandings,” according to Stegall’s majority opinion.

Stegall argued that the net of this approach ends up encompassing protected speech.

The state Supreme Court has ordered the lower court to reconsider issuing an emergency injunction against the false impersonation law. This is because the lawsuit challenging the law’s constitutionality is highly likely to succeed.

Martha Pint, president of the Kansas League of Women Voters chapter, expressed her concerns regarding the restrictive law that has hindered their ability to assist voters for the past three years. She emphasized that the League’s vital voter assistance work should not be considered a crime. Pint remains optimistic that this provision will be swiftly overturned by the district court upon reconsideration.

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Davis Hammet, the executive director of Loud Light, expressed his hope that the lower court will take action to prevent the ongoing damage caused by the law and allow them to continue voter registration before the general election.

Requests for comment on that portion of the high court’s ruling went unanswered by both Kansas Secretary of State Scott Schwab and state Attorney General Kris Kobach.

Instead, Schwab and Kobach emphasize the language used by the high court that supports the signature verification law. They also highlight the provision that limits individuals to collecting a maximum of 10 advance ballots for submission to election officials.

Schwab expressed his satisfaction with the ruling, stating that it enables them to maintain reasonable election security laws in Kansas.

Supporters claim that the restriction on ballot collection aims to combat “ballot harvesting” and reduce voter fraud. This measure was passed by the GOP-led Legislature despite being vetoed by Kansas Democratic Gov. Laura Kelly. Critics argue that this restriction is a response to unfounded allegations of an illegitimate 2020 election, which has led to a proliferation of misinformation and voter suppression laws nationwide.

In a recent ruling, the Kansas Court of Appeals revived a lawsuit that challenges the restrictions on ballot collection and the verification of signatures, stating that these measures hinder the right to vote. Nevertheless, the higher court upheld the limitation on ballot collections, affirming that voters have various options to submit their ballots and that ballot collecting does not fall under the umbrella of free speech.

Kobach supported the majority’s opinion, stating that it was “well-reasoned” and emphasized that the Legislature has the constitutional authority to establish measures to verify the identity of voters.

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According to Kobach, Kansas’s signature verification requirement aligns perfectly with their objectives.

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