513 P.3d 1222
Kan. Ct. App.2022Background:
- Four nonpartisan Kansas nonprofits (League of Women Voters of Kansas, Loud Light, Kansas Appleseed, Topeka Independent Living Resource Center) perform voter outreach, education, and registration statewide.
- Kansas enacted K.S.A. 2021 Supp. 25-2438 (effective July 1, 2021), making it a felony to "knowingly": represent oneself as an election official, give the appearance of being an election official, or engage in conduct that would cause another to believe one is an election official.
- Appellants allege occasional attendees have mistaken volunteers for election officials despite volunteers identifying their affiliations; after the statute passed they curtailed or canceled events out of fear of prosecution and sought a pre-enforcement injunction against subsections (a)(2) and (a)(3).
- The district court denied injunctive relief on the merits without resolving standing; Douglas County DA publicly vowed not to prosecute under the law while the Attorney General said enforcement remains possible statewide.
- The Court of Appeals dismissed the appeal for lack of standing, holding appellants failed to show a cognizable, non-speculative injury or a credible threat of prosecution because the statute requires "knowing" conduct by the speaker and appellants deny any intent to misrepresent.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do appellants have standing for a pre-enforcement challenge? | Appellants curtailed protected speech and therefore suffered an injury; pre-enforcement relief is allowed when there is a credible threat of prosecution. | No cognizable injury: appellants have not engaged in or intend to engage in prohibited conduct; fear is speculative. | No standing: appellants failed to prove a concrete, non-speculative injury or credible threat of enforcement. |
| Does appellants' outreach fall within the statute's proscribed conduct? | The statute's appearance-based phrases sweep broadly and could penalize ordinary outreach mistaken by listeners. | Statute requires speaker to act "knowingly"; mere listener confusion without deliberate conduct is insufficient. | Court: appellants' typical conduct lacks the deceptive mens rea the statute targets; therefore their activities are not shown to be proscribed. |
| Is there a credible threat of prosecution (objective reasonableness)? | Self-censorship and public statements (AG said law could be enforced) make threat credible. | Appellants have no intent to mislead and DA's nonprosecution statement plus mens rea limit render threat not substantial. | Held: threat not substantial/objectively reasonable given mens rea requirement and record showing identification practices. |
| Can self-censorship alone establish injury in fact? | Curtailment of activities due to fear of prosecution constitutes injury. | Self-censorship here is speculative because appellants do not intend to commit the prohibited knowing conduct. | Held: subjective chill/self-censorship insufficient without evidence of credible, imminent enforcement. |
Key Cases Cited
- Sierra Club v. Moser, 298 Kan. 22 (Kan. 2013) (associational standing elements for organizations)
- Gannon v. State, 298 Kan. 1107 (Kan. 2013) (justiciability and standing principles)
- State v. Williams, 299 Kan. 911 (Kan. 2014) (overbreadth exception permitting standing to vindicate First Amendment rights)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (U.S. 2014) (pre-enforcement standing test; credible threat of prosecution standard)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (U.S. 2007) (permitting pre-enforcement constitutional challenges)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (U.S. 2016) (injury-in-fact must be concrete and particularized)
- Laird v. Tatum, 408 U.S. 1 (U.S. 1972) (subjective chill insufficient for standing)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (U.S. 2013) (imminence and substantial risk standard for future injuries)