671 F.Supp.3d 1230
D. Kan.2023Background:
- Kansas enacted HB 2332 (May 3, 2021), which includes a "Personalized Application Prohibition" that criminalizes third parties mailing pre-filled (name/address) advance mail ballot applications to registered Kansas voters; limited exceptions allow some state and county officials to do so.
- Voter Participation Center (VPC) mailed personalized advance ballot applications to Kansas voters in 2020 and uses such mailings (with a cover letter and pre-filled form) as its core means of advocating for mail voting and enrolling underrepresented voters.
- County election officials use the state voter database (ELVIS); changes in ELVIS can make third-party pre-filled forms stale and create some mismatches/duplicate submissions, which county officials say increases processing time.
- Defendants (Secretary of State, Attorney General, Johnson County DA) asserted interests in preventing fraud, reducing voter confusion, and promoting efficient election administration, but offered little evidence of fraud or that personalization caused systemic problems in 2020.
- The court found (on stipulated facts) that mailing personalized applications is expressive conduct and implicates associational rights; because the application and cover letter are "characteristically intertwined," strict scrutiny applies.
- The court held the Personalized Application Prohibition is not narrowly tailored to a compelling interest and is facially overbroad; it permanently enjoined enforcement of the statute's second sentence (K.S.A. § 25-1122(k)(2)).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mailing pre-filled advance ballot applications is protected expressive conduct | VPC: personalization plus cover letter conveys a targeted pro-mail-voting message and produces voter action | State: the message is communicated by the cover letter; the form itself is non-expressive administrative paper | Court: The personalized application (with context) is inherently expressive; recipients understand the message; protected speech |
| Whether the statute infringes freedom of association | VPC: personalization helps build relationships and recruit underrepresented voters; it is an associational means | State: mailings are unilateral solicitations recipients can ignore, so no associational impact | Court: activity implicates associational rights (analogy to NAACP v. Button); Plaintiffs' targeted outreach is protected |
| Proper level of scrutiny | VPC: strict scrutiny applies because the law restricts core political speech and the total quantum of speech | State: Anderson-Burdick balancing applies as an election-administration regulation | Court: Strict scrutiny applies (speech and cover letter are "characteristically intertwined"); Anderson-Burdick would not change result |
| Whether statute survives strict scrutiny / is overbroad | VPC: statute is not narrowly tailored and criminalizes a substantial amount of protected speech | State: statute furthers compelling interests (fraud prevention, reduce confusion, administrative efficiency) | Court: Defendants failed to show narrow tailoring or evidence of fraud/confusion; statute is not narrowly tailored and is facially overbroad; injunction entered |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (recognizes expressive conduct protection)
- Spence v. Washington, 418 U.S. 405 (1974) (articulates intent/understandability test for symbolic speech)
- Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) (clarifies limits of Spence test)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (distinguishes nonexpressive conduct from conduct accompanied by explanatory speech)
- Meyer v. Grant, 486 U.S. 414 (1988) (struck restrictions on petition circulation as core political expression)
- Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) (protected political circulation; invalidated certain regulation of petition circulators)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework for evaluating election regulations)
- Burdick v. Takushi, 504 U.S. 428 (1992) (balancing test for burdens on voting rights)
- NAACP v. Button, 371 U.S. 415 (1963) (associational activity protected as a means of political expression)
- Doe v. Reed, 561 U.S. 186 (2010) (signatures on petitions as expressive acts entitled to First Amendment analysis)
- Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) (solicitation is characteristically intertwined with protected speech)
- Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781 (1988) (courts should not artificially dissect component parts of speech)