The U.S. Court of Appeals for the Tenth Circuit has overturned a prior district court ruling, deciding against allowing VoteAmerica and the Voter Participation Center (VPC) to distribute mail-in ballot applications to Kansas voters that include pre-filled information. This decision reversed and remanded the earlier court order favoring the plaintiffs, who based their case on alleged First Amendment violations by Kansas statute HB 2332.
Originally, the plaintiffs argued the statute infringed on their rights to free speech and association, as it prohibited the mailing of personalized ballot applications. The Kansas state officials contended the law ensured electoral integrity by minimizing voter fraud and confusion. The pivotal legal question addressed by the appeals court was determining the applicable level of scrutiny: whether the statute warranted “strict scrutiny,” which requires the least restrictive means necessary for achieving state interests, or “intermediate scrutiny,” which demands a substantial relation to those interests without being the most restrictive method. The appeals court opted for intermediate scrutiny, noting the statute’s neutral intent.
Despite rejecting the plaintiffs’ freedom of association claim, the appeals court sent the freedom of speech matter back to the lower court, insisting that the filled applications do constitute speech under the First Amendment. This stands in contrast to the district court which previously granted an injunction against the Kansas statute and ruled in favor of the plaintiffs after a strict scrutiny analysis, determining both free speech and association rights were compromised.
The case is grounded in precedent, as the VPC distributed voting materials broadly during the 2020 elections. About 500,000 Kansas voters received packets with pre-addressed envelopes filled with voter details, leading to some duplicate submissions and prompting Kansas to enact HB2332. Concerns over this statute have been echoed by the League of Women Voters of Kansas, which challenged HB2332 and other related laws for alleged voter suppression measures.
This legal development compels the district court to reevaluate whether the intent behind HB2332 was to suppress mail voting-related speech, which will be a determining factor in ruling on the statute’s constitutionality. For more detailed analysis, see the report.