by Tim Carpenter, Kansas Reflector
March 17, 2023
TOPEKA — A three-judge panel of the Kansas Court of Appeals issued an opinion Friday declaring voting a foundational constitutional right potentially undermined by state law mandating election volunteers verify signatures on advance ballots and restricting the number of advance ballots a person could deliver to an election office.
The appellate panel of Judges Sarah Warner, Henry Green and Stephen Hill, appointees of three different Kansas Democratic governors, reversed the decision of a Shawnee County District Court judge to dismiss the voting-access lawsuit filed by Loud Light, Kansas Appleseed Center for Law and Justice and the Topeka Independent Living Resource Center against Secretary of State Scott Schwab and Attorney General Kris Kobach.
The opinion remanding the case back to district court, but not overturning the state voting laws in question, referenced a legal precedent set by the Kansas Supreme Court in a 2019 opinion declaring abortion rights were embedded in the Kansas Constitution.
“Today’s landmark ruling creates a foundation for protecting democracy in Kansas for generations to come,” said Davis Hammet, of Loud Light. “Voting isn’t a privilege. It’s a fundamental right.”
Kobach, who said he would appeal, characterized the Court of Appeals opinion as the nation’s “most radical election law decision.” He also said the appellate court’s findings were “clearly wrong” and “illogical.”
“The decision is directly contrary to what the U.S. Supreme Court has said, as well as what every state Supreme Court has said on the matter,” Kobach said.
Kansas House Speaker Dan Hawkins, a Wichita Republican, said he was confident Republicans would support Kobach’s appeal of the “egregious decision.” It could be challenged before the Kansas Supreme Court. The conflict could wind up in federal court.
“Today’s decision was shocking and endangers every election integrity measure currently on the books,” Hawkins said. “It’s just the latest salvo in the effort by the ‘woke’ left to destroy the sanctity of the ballot box and opens our state up to the possibility of massive election fraud.”
In 2021, the Kansas Legislature adopted voting restrictions to answer political angst among conservatives who alleged voter misconduct in the 2020 loss by President Donald Trump to President Joe Biden.
The Republican-led Legislature required election officials to evaluate advance ballots by matching signatures on file with the county with signatures on ballot envelopes.
In addition, the Legislature capped at 10 the number of advance ballots an individual could gather for delivery to an election office.
“Having election officials make sure that it is your signature on your advance ballot doesn’t hurt your right to vote,” Kobach said in response to the court opinion. “It protects your vote from being stolen by someone else.”
The opinion drafted by Hill, who was appointed by Democratic Gov. Kathleen Sebelius, said plaintiffs had standing to sue and had sufficiently argued District Court Judge Teresa Watson was wrong to dismiss the case. Watson was appointed to the district court by GOP Gov. Sam Brownback.
“The right to vote is a fundamental right guaranteed under the Kansas Constitution,” Hill said in the opinion. “The district court should not have dismissed the plaintiffs’ claims.”
The Court of Appeals said state law requiring election officials to match signatures on advance ballots to other documents impaired the right to vote in Kansas.
The ballot-collection limit placed in state statute undermined the capacity of Kansans to cast votes, the Court of Appeals said. In addition, the appellate judges said those restraints violated free speech rights of individuals collecting ballots, but not of the voters.
The opinion said this voting dispute should be subjected to “strict scrutiny,” the highest standard of review by the courts. To bolster that argument, the Court of Appeals repeatedly referred the district court to the Kansas Supreme Court’s abortion rights decision to justify application of that measure of analysis.
Schwab, the secretary of state and Kansas’ top elections official, said his office was reviewing the Court of Appeals’ opinion, but the decision appeared to be a “substantial change to the judicial standard of reviewing state election laws.”
Nearly 100 years ago, the Kansas Supreme Court held the Legislature must not directly or indirectly deny the constitutional right of the citizen to vote or unnecessarily impeded the exercise of that right.
“History records the struggle Kansans experienced when joining the union of states,” the Court of Appeals’ opinion concluded. “It was by free elections that we gained statehood. Thus, voting rights are preserved in the Kansas Constitution. Great care must be taken when trying to limit or infringe on those rights. Voting was important then. Voting is important now.”
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