By Sherman Smith, Kansas Reflector
September 14, 2021
TOPEKA — Voting rights attorneys battled Tuesday in Shawnee County District Court over the merits of a new law that threatens felony prosecution for any activities that could be mistaken as the work of an election official.
Nonprofits including the League of Women Voters of Kansas sued the state before the law took effect July 1, halting all voter registration drives and outreach efforts. They asked District Judge Teresa Watson to issue a temporary injunction blocking part of the law that deals with impersonating an election official.
Bradley Schlozman, a Wichita attorney hired by the state to defend the law, said the nonprofits have manufactured a crisis. He referred to House Bill 2183 as “a perfectly valid prophylactic” and said the only way to violate it is by intentionally confusing voters.
Plaintiffs “are effectively thrusting at lions of their own imagining,” Schlozman said.
Hal Brewster, a Washington, D.C. attorney representing Kansas Appleseed, Loud Light and the Topeka Independent Living Resource Center, said there are no assurances that volunteers could escape prosecution under the broadly written legislation. The law prohibits “conduct that gives the appearance of being an election official” or “would cause another person to believe a person” is an election official.
That language is problematic, Brewster argued, because volunteers with the nonprofits know they are often mistakenly perceived as election officials.
“This is about people’s perceptions — subjective perceptions,” Brewster said. “In this political environment we’ve seen, particularly in the aftermath of the 2020 election, people’s perceptions about elections and elections officials be wildly incorrect. That is the exact danger that we have here, where people’s perceptions could lead to criminal prosecution.”
Watson, the judge, said she expects to make a ruling “very shortly.”
The GOP-controlled Legislature passed new election-related restrictions in the wake of politically motivated false narratives about the integrity of the 2020 presidential election. House Bill 2183 includes new penalties for touching somebody else’s ballot, distributing ballots, helping someone turn in their ballot, or altering the postmark on an advanced ballot.
Kansas law previously made it a misdemeanor to impersonate an election official. The new law makes it a felony with punishment of up to 17 months in prison and a $100,000 fine.
The nonprofits are challenging several components of the new law, but they only asking the court to take immediate action on the part that restricts voter registration efforts. The law already affected participation in the August primary, Brewster said, and the deadline to register for the November general election is Oct. 12.
Nonprofits are concerned about the impact on local races, which have the biggest effect on residents’ day-to-day lives and historically have the lowest voter turnout. They canceled voter registration drives that were planned in celebration of the 26th Amendment, the Americans with Disabilities Act, welcome week at universities and dozens of community events across the state.
The law prohibits anything that could be perceived as the work of an election official, Brewster argued, which could include informational videos, mailers, braille cards produced by the Topeka Independent Living Resource Center, candidate questionnaires or even the League of Women Voters’ vote411.org website, which provides deadlines, registration information and ballot listings.
Schlozman said there is no threat of imminent prosecution.
“For whatever reason, they have voluntarily decided to cease certain activities,” Schlozman said. “But what they’re doing is not a violation of the law. The only way for them to violate it is if they intentionally misrepresent themselves as an election official. And that’s the only thing that the Legislature was trying to get at here.”
Brewster pointed to an Aug. 2 news release by Kansas Attorney General Derek Schmidt, who vowed to prosecute this specific crime under the new law. Brewster also said there is no evidence that Kansas has had any problem with impersonation of election officials.
Schlozman said legislation doesn’t have to be based on facts. Regulations like this are necessary, Schlozman said, for elections to be orderly and for the public to have confidence in them.
Brewster’s resume includes fighting back attempts to overturn results of the 2020 elections. Before he became an attorney, he served for four years as an active duty U.S. Army officer, leading a scout and sniper platoon.
Schlozman served as a lawyer in the U.S. Justice Department’s Civil Rights Division during the George W. Bush administration, and supported voting restrictions in several states. An inspector general report concluded Schlozman lied to Congress about his partisan hiring practices, but federal prosecutors declined to file charges.
In 2018, Schlozman defended Ford County Clerk Debbie Cox in a lawsuit from the ACLU of Kansas after she moved the county’s only polling location to a location outside of Dodge City limits.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.