Court: KS Can Stop Groups From Mailing Pre-Filled Ballot Forms

In a win for election integrity, a federal appellate court upheld on Wednesday a Kansas law prohibiting third-party groups from sending voters pre-filled absentee ballot applications.

“Kansas acted after error-filled, prefilled mail-ballot applications flooded voters and overwhelmed county election officials in 2020. Protecting voters from confusion and keeping elections orderly is commonsense, not suspect,” said Honest Elections Project Executive Director Jason Snead, whose group filed a brief supporting the Sunflower State in the case.

In its unanimous ruling, the three-judge panel for the 10th Circuit Court of Appeals found that the Kansas law barring “private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters” passes legal muster. The panel was comprised of Judges Timothy Tymkovich (Bush 43 appointee), Joel Carson (Trump appointee), and Senior Judge Michael Murphy (Clinton appointee).

The GOP-controlled Kansas Legislature passed the contested law in 2021, negating the veto of Democrat Gov. Laura Kelly. Two left-wing organizations — VoteAmerica and the Voter Participation Center (VPC) — subsequently filed a federal lawsuit alleging that the statute’s provisions violated the First and 14th Amendments.

Senior District Judge Kathryn Vratil, a Bush 41 appointee, initially granted a temporary injunction blocking the law from taking effect that same year. She later issued a complete decision in 2023, in which she agreed with the left-wing groups that the law’s restrictions unlawfully “chilled” their speech under the First Amendment.

The 10th Circuit reversed Vratil’s decision and, upon remand, instructed her to use a lower form of scrutiny to assess the law unless she found that the legislature had “enacted it with improper motives.” The Bush 41 appointee said she found such motives, prompting the state to once again appeal to the 10th Circuit for relief.

Writing for the majority in Wednesday’s decision, Tymkovich ruled that Vratil “found an improper purpose without evidence from the prohibition’s justifications, text, or legislative history,” and “instead inferred an improper purpose from the national political debate on mail-in voting.” “That finding,” he said, “was in error.”

“Because the prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the prohibition constitutional,” Tymkovich wrote.

The appellate judge went on to note that the law “is ‘unrelated to the suppression of free speech’ because it was not ‘adopted by the government because of disagreement with the message the speech conveys.’” He observed that Kansas’ reasons for implementing the law, such as to prevent confusion among voters, “are unrelated to viewpoint suppression.”

“VPC fails to show that Kansas enacted the prohibition to suppress its pro-mail-voting viewpoint. The district court’s reliance on cultural antagonism against mail-in voting to infer the Kansas legislature enacted the prohibition with an improper purpose — when the law’s justifications, text, and enactment history reveal no such purpose — was in error,” Tymkovich wrote.

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While marketing itself as “nonpartisan,” VPC has regularly operated as a vehicle for leftists’ voter registration and get-out-the-vote machine. Not only does the organization send pre-filled mail-in ballot forms to prospective voters, but it also specifically targets demographics likely to pull the ballot box lever for the Democrat Party.