Kansas Constitution does not include a right to vote, state Supreme Court majority says

The Kansas Supreme Court offered a mixed bag in a ruling Friday that combined several challenges to a 2021 election law, siding with state officials on one provision, reviving challenges to others and offering the possibility that at least one will be halted before this year’s general election.

But it was the ballot signature verification measure’s majority opinion — which stated there is no right to vote enshrined in the Kansas Constitution’s Bill of Rights — that drew fiery dissent from three of the court’s seven justices.

The measure requires election officials to match the signatures on advance mail ballots to a person’s voter registration record. The state Supreme Court reversed a lower court’s dismissal of that lawsuit, but the majority rejected arguments from voting rights groups that the measure violates state constitutional voting rights.

In fact, Justice Caleb Stegall, writing for the majority, said that the dissenting justices wrongly accused the majority of ignoring past precedent, holding that the court has not identified a “fundamental right to vote” within the state constitution.

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“It simply is not there,” Stegall wrote.

Justice Eric Rosen, one of the three who dissented, shot back: “It staggers my imagination to conclude Kansas citizens have no fundamental right to vote under their state constitution.”

“I cannot and will not condone this betrayal of our constitutional duty to safeguard the foundational rights of Kansans,” Rosen added.

Conversely, the high court unanimously sided with the challengers of a different provision that makes it a crime for someone to give the appearance of being an election official. Voting rights groups, including Kansas League of Women Voters and the nonprofit Loud Light, argued the measure suppresses free speech and their ability to register voters as some might wrongly assume volunteers are election workers, putting them at risk of criminal prosecution.

A Shawnee County District Court judge had earlier rejected the groups’ request for an emergency injunction, saying that impersonation of a public official is not protected speech.

But the high court faulted the new law, noting that it doesn’t include any requirement that prosecutors show intent by a voter registration volunteer to misrepresent or deceive people into believing they’re an election official, and it thus “criminalizes honest speech” where “occasional misunderstandings” are bound to occur, Stegall wrote in the majority opinion.

“As such, it sweeps up protected speech in its net,” Stegall said.

Because the lawsuit over the false impersonation law’s constitutionality is likely to succeed, the state Supreme Court ordered the lower court to reconsider issuing an emergency injunction against it.

“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,” said Martha Pint, president of the chapter. “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.”

Loud Light executive director Davis Hammet said he hopes the lower court “will stop the irreparable harm caused daily by the law and allow us to resume voter registration before the general election.”

Neither Kansas Secretary of State Scott Schwab nor state Attorney General Kris Kobach responded to requests for comment on that portion of the high court’s ruling.

Instead, in a joint statement, Schwab and Kobach focus on the high court’s language bolstering the signature verification law and its upholding of a provision that says individuals may collect no more than 10 advance ballots to submit to election officials.

“This ruling allows us to preserve reasonable election security laws in Kansas,” Schwab said.

Supporters have argued the ballot collection restriction combats “ballot harvesting” and limits voter fraud. The GOP-led Legislature passed it over a veto by Kansas Democratic Gov. Laura Kelly. Critics have said it’s a Republican reaction to baseless claims that the 2020 election was not valid, which prompted a wave of misinformation and voter suppression laws across the country.

Last year, the Kansas Court of Appeals reinstated a lawsuit challenging the ballot collection limitation and the signature verification, saying both impair the right to vote. But the high court upheld the limit on ballot collections, saying “voters have numerous avenues available to deliver their ballots” and that ballot collecting doesn’t fall within the parameters of free speech.

Kobach defended the majority’s opinion as “well-reasoned” and confirms that the Legislature has the constitutional authority to establish proofs “to ensure voters are who they say they are.”

“And that is exactly what Kansas’s signature verification requirement is,” Kobach said.