VoteAmerica v. Schwab, 121 F.4th 822

Background

In 2020 Voter Participation Center (VPC) mailed Kansas voters packets promoting mail voting that included a cover letter and prefilled mail-ballot applications (name/address prefilled); about 69,000 mail-ballot applications were estimated to derive from VPC mailings and many duplicate/erroneous forms were also sent.
Kansas enacted H.B. 2332 (Kan. Stat. Ann. § 25-1122(k)(1)–(2)) forbidding private parties, when soliciting a registered voter by mail, from completing any portion of an advance-voting application prior to mailing it to the voter; two exceptions apply for election officials and a HAVA-designated protection/advocacy agency.
County election officials reported increased duplicate applications, mismatches with the state voter database (ELVIS), voter confusion, and administrative burden during 2020; officials acknowledged some administrative benefits to prefilled forms but complained about errors and duplicates.
Plaintiffs (VPC and VoteAmerica) sued, alleging the Prohibition violated the First and Fourteenth Amendments (free speech, freedom of association, and overbreadth); the district court applied strict scrutiny, enjoined enforcement, and held for Plaintiffs on speech and association claims.
The Tenth Circuit held (1) mailing prefilled applications is protected speech and the prefilled form is separable from the cover letter, (2) Anderson–Burdick balancing is inapplicable, (3) the Prohibition is content-based but—absent an improper purpose—subject only to intermediate scrutiny, (4) the associational and overbreadth rulings for Plaintiffs were reversed and remanded for further proceedings on the speech claim under intermediate scrutiny.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are prefilled mail‑ballot applications separable from VPC’s cover letter for First Amendment analysis?	The application and letter form a unified, "inextricably intertwined" package; the application is part of protected persuasive speech.	The application can be treated separately; it is not necessarily part of the cover letter’s protected expression.	Separable: the court rejected the "inextricably intertwined" claim and analyzed the prefilled application independently.
Is mailing prefilled applications protected speech?	Yes: adding written information constitutes the creation and dissemination of information (speech).	No: this is nonexpressive conduct or mere information already known/available to recipients and thus not entitled to First Amendment protection.	Protected speech: the court held mailing prefilled applications is speech (creation/dissemination of information) entitled to First Amendment protection.
What standard of review applies—Anderson–Burdick, Meyer/Buckley strict scrutiny, or intermediate scrutiny?	Meyer/Buckley: strict (or exacting) scrutiny applies because the law reduces the "total quantum of speech" and restricts a favored means of political advocacy.	Anderson–Burdick or lower scrutiny as an election regulation; if content/speaker based, still not strict because of governmental interests.	Anderson–Burdick inapplicable (this regulates pure speech, not mechanics of voting). The statute is content‑based but viewpoint neutral; absent evidence of improper purpose, apply intermediate scrutiny.
Does the Prohibition violate freedom of association?	Yes: VPC’s mailings foster association with targeted voters and build a sustained relationship (tracking responses, follow-ups), so the law impairs associational rights (Button/Healy).	No: recipients are strangers; use of a form is transactional and does not create the kind of expressive association protected by the First Amendment.	No associational injury: the court rejected the associational claim, distinguishing Button and Healy and finding recipients are not expressively associated members. Judgment for Defendants on association.
Is the statute unconstitutionally overbroad?	Yes: it criminalizes a substantial amount of protected speech relative to any legitimate sweep.	No: the statute has legitimate applications (e.g., preventing incorrectly completed official forms) and is not substantially overbroad.	Overbreadth claim failed: Plaintiffs did not identify realistic unconstitutional applications beyond their own claims; overbreadth dismissed.

Key Cases Cited

Meyer v. Grant, 486 U.S. 414 (1988) (paid petition‑circulator ban restricted a fundamental avenue of political discourse; heightened scrutiny applied)
Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182 (1999) (reinforced Meyer’s protection for petition circulation and core political speech)
Anderson v. Celebrezze, 460 U.S. 780 (1983) (balancing test for election‑law burdens on voting and association)
Burdick v. Takushi, 504 U.S. 428 (1992) (framework for evaluating burdens imposed by election regulations)
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (anonymous campaign literature is pure speech; Anderson–Burdick not applied to pure speech regulation)
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (creation and dissemination of information is speech; speaker/content‑based restrictions invite heightened scrutiny)
City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61 (2022) (content‑based but viewpoint‑neutral sign regulation subjected only to intermediate scrutiny absent improper purpose)
Vidal v. Elster, 602 U.S. 286 (2024) (examined content‑based but viewpoint‑neutral trademark restriction and the scrutiny question)
Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007) (content‑based, viewpoint‑neutral limitations on use of union funds upheld under less than strict scrutiny)
Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) (charitable solicitation often "characteristically intertwined" with protected advocacy)
Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781 (1988) (commercial/financial disclosures ‘‘inextricably intertwined’’ with protected speech could warrant full protection)
Button v. Nat’l Ass’n for the Advancement of Colored People, 371 U.S. 415 (1963) (associational protection where group solicited plaintiffs to join litigation as means of advocacy)
City of Dallas v. Stanglin, 490 U.S. 19 (1989) (casual encounters among strangers do not implicate expressive association)