by Sherman Smith, Kansas Reflector
February 1, 2023
TOPEKA — Kansas Supreme Court justices raised concerns Wednesday about the “chilling” effect a 2021 law could have on League of Women Voters volunteers and others who participate in voter registration drives.
Part of the legislation makes it a crime to engage in conduct that would cause someone to believe you are an election worker. In response, multiple nonprofits suspended or limited efforts to educate and assist prospective voters.
The League of Women Voters joined with Loud Light, Kansas Appleseed and the Topeka Independent Living Resource Council in challenging provisions of the law. A district court judge and court of appeals panel dismissed the case on the grounds that those organizations couldn’t demonstrate how the law impairs their operations.
During oral arguments Wednesday, Justice Melissa Standridge said the appeals court made a mistake.
Standridge sparred with Bradley Schlozman, who defended the law on behalf of the state.
“This case presents a completely manufactured controversy in which for inexplicable reasons, plaintiffs are asking the court to interpret the statute in the most unreasonable manner possible in order to expose themselves to criminal liability,” Schlozman said. “The statute does not support the interpretation that they have advanced.”
Elisabeth Frost, an attorney with the Washington, D.C.-based Elias Group, presented arguments on behalf of the nonprofits that filed the lawsuit.
She said the League of Women Voters has helped Kansans register to vote for more than 100 years. The other organizations involved in the litigation are “deeply committed to this work,” Frost said, and have “severely curtailed their efforts” for fear of their employees and volunteers being charged with a felony crime.
“It is frankly absurd to suggest that they have brought this lawsuit and curtailed their activity for just the fun of it,” Frost said. “They are afraid because the plain language makes them afraid.”
Schlozman’s argument was that no reasonable person would believe a volunteer at a voter registration drive was an election worker, especially if that volunteer disabused anyone of the wrong idea.
But multiple justices, including Standridge, Evelyn Wilson and Caleb Stegall, pointed to the absence of language in the law that would define a “reasonable person.” They appeared sympathetic to the plaintiffs’ argument that someone will mistake a volunteer for an election worker.
Wilson wondered, as a hypothetical, whether she would be breaking the law by distributing a brochure produced by the Secretary of State’s Office without including a disclaimer that says she isn’t actually the secretary of state.
“Don’t you think that’s pretty chilling?” she said.
Schlozman said the state has an interest in protecting the public. The idea that someone would mistake a nonprofit’s volunteer for an election worker is “subjective,” he said.
“Not subjective,” Standridge said. “They’ve experienced it. They have affidavits that show, ‘People have mistaken us.’ ”
Schlozman said the affidavits indicate the mistaken identity is inevitable, which caused Standridge to shout, “No!” The affidavits, she pointed out, make it clear that people who work the voter registration booths are sometimes mistaken for election workers.
“If that is the case, your honor, then where do you draw the line?” Schlozman asked.
“Exactly,” Standridge said. “Do you draw the line at one person out of 10,000? Or is it five people out of 10,000? Is it 30 people?”
Based on Schlozman’s argument, Standridge said, there would have to be an evidentiary hearing for every person who mistakes the identity of a volunteer.
Her examples: “Are you reasonable? What is your educational background? What is your IQ? What is your level of experience with voting? What is your level of experience engaging in community service?”
Schlozman countered with a pop culture reference: A man asks a woman if he has a chance, and she tells him, “one in a million.” So, he replies, I have a chance.
“In that sort of scenario, I mean, sure, they’re statistically under that theory,” he said. “There could be and inevitably will be the willfully blind, the folks who are denying election.”
If the number is one in 10,000, Schlozman said, the organizations don’t have a reason to be concerned.
“With the threat of going to jail? One in 10,000?” Standridge said. “When frankly, I bought a lottery ticket when it was a billion dollars, OK? Why would I, at one out of 10,000, put my freedom at risk?”
Frost, the plaintiffs’ attorney, called attention to Schlozman’s reference of election deniers.
“I don’t think this court can ignore that is the context in which this was passed, a context in which election officials are regularly being harassed across the United States, and threatened, and yet the Legislature did not include a reasonable person standard,” Frost said.
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.