A Kansas law that makes it a crime to impersonate an election official unconstitutionally interferes with voter outreach efforts, voting rights groups told the state Supreme Court on Tuesday.
Their argument was met with opposition from state officials, who say the law helps curb fraud.
Attorneys for both sides sparred in a court hearing over the constitutionality of a key component of Republicans’ efforts to restrict voting rights in the wake of unfounded claims of voter fraud during the 2020 election.
Lawmakers overrode a veto by Democratic Gov. Laura Kelly to pass House Bill 2183 in 2021 amid criticism it amounted to voter suppression. Under the law, it’s a felony to pretend to be an election official or to engage in conduct that causes other people to falsely believe someone is an election official.
Four voting rights groups say that effectively bans voter registration drives. That’s because their volunteers are often mistaken for election workers, despite identifying themselves otherwise — putting them at risk of prosecution.
The hearing took place on the final day for Kansans to register to vote in the state’s 2024 presidential preference primary election, which is scheduled for March 19.
Elizabeth Frost, an attorney arguing for the voting rights groups, asked the court to swiftly block the law or direct a lower court to do so.
“Every single day that goes by that the plaintiffs are under this threat is a harm not just to them,” she said, “but to the public.”
The law violates the First Amendment of voting rights groups, she said, and is overly vague and broad — making it liable to arbitrary enforcement by the courts and law enforcement. Voting rights groups say the law has caused them to cancel voter registration drives and other outreach activities because their volunteers are scared they could be prosecuted for helping people register to vote.
Kansas Secretary of State Scott Schwab and Attorney General Kris Kobach are defending the law. Bradley Schlozman, an attorney arguing on their behalf, said the law was meant to crack down on what he described as “nefarious actors” gathering information from voters during the 2020 election and using it to commit identity theft.
“The statute is trying to prohibit individuals from confusing voters,” he said.
Several justices appeared wary of the state’s argument.
“You can criminalize the use of information (for identity theft) without criminalizing the door-to-door expression,” Justice Dan Biles said.
“You can kill an ant with an atom bomb,” he added, “and that’s pretty effective — but it does a lot more.”
Schlozman acknowledged that the law raised some questions, but told the court it was still possible to apply the law in a constitutional manner.
Lawmakers currently are considering amending the law to allay some of the constitutionality concerns critics have raised. House Bill 2618 would specify that it’s a crime to engage in conduct “with the intent” to cause others to believe that the person is an election official. Lawmakers have passed the proposal out of committee and it will face a House floor vote this week.
Kobach requested the change after the state Supreme Court agreed to hear the case in December, overturning a lower court’s ruling that found voting rights groups did not have standing to challenge the law.
“If some amendments to this statute were to become law during this session,” Justice Caleb Stegall asked, “would that moot all the issues that are now in front of us?”
Schlozman said he believed it would.
But Frost said such a change wouldn’t fix a law that she described at one point as “rotten to its core.”
Chief Justice Marla Luckert said the court would take the matter under advisement. The hearing is the latest development in a power struggle over voting rights that’s played out in states across the country in the wake of the 2020 election and false claims of voter fraud by former President Donald Trump.
Rose Conlon reports on health for KMUW and the Kansas News Service.
The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
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