League of Women Voters of Kansas v. Schwab
| Decision Date | 17 June 2022 |
| Docket Number | 124,378 |
| Citation | 62 Kan.App.2d 310,513 P.3d 1222 |
| Parties | LEAGUE OF WOMEN VOTERS OF KANSAS, Loud Light, Kansas Appleseed Center for Law and Justice, Inc., and Topeka Independent Living Resource Center, Appellants, v. Scott SCHWAB, in His Official Capacity as Kansas Secretary of State, and Derek Schmidt, in His Official Capacity as Kansas Attorney General, Appellees. |
| Court | Kansas Court of Appeals |
Henry J. Brewster, Elisabeth C. Frost, Tyler L. Bishop, and Spencer M. McCandless, pro hac vice, of Elias Law Group LLP, of Washington, D.C., Pedro Irigonegaray, Nicole Revenaugh, Jason Zavadil, and J. Bo Turney, of Irigonegaray, Turney, & Revenaugh LLP, of Topeka, and David Anstaett, pro hac vice, of Perkins Cole LLP, of Madison, Wisconsin, for appellants.
Bradley J. Schlozman and Scott R. Schillings, of Hinkle Law Firm LLC, of Wichita, and Brant M. Laue, solicitor general, and Derek Schmidt, attorney general, for appellees.
Before Gardner, P.J., Hill and Isherwood, JJ.
The League of Women Voters of Kansas (the "League"), Loud Light, Kansas Appleseed Center for Law and Justice, Inc. ("Kansas Appleseed"), and Topeka Independent Living Resource Center (the "Center") (collectively the "appellants") challenge two sections of a relatively new Kansas crime, K.S.A. 2021 Supp. 25-2438, which makes it a severity level 7, nonperson felony to knowingly misrepresent oneself as an election official. Appellants contend the broad language of the statute results in the criminalization of their voter education, engagement, and registration activities. As support for their contention, they assert that occasionally during past voter-assistance activities, an observer believed they were election officials despite clearly identifying themselves as volunteers with their respective organizations. The appellees disagree and contend the appellants' concern is unfounded because the statute demands that the misrepresentation at issue be the product of knowing conduct before an individual is subject to prosecution. Following a conscientious and exacting review of the issues presented, in conjunction with the evidence and arguments offered in support thereof, we find that the appellants failed to satisfy their burden to demonstrate an actual injury in fact as required to have standing to litigate their claims. In the absence of standing there is no justiciable controversy. Accordingly, the appellants' case must be dismissed.
The League, Loud Light, Kansas Appleseed, and the Center are non-partisan, nonprofit organizations that perform voter outreach, education, and registration in an effort to encourage greater civic engagement. During the 2020 election cycle, the League registered over 2,000 Kansas voters. In that same time period, Loud Light produced a widely shared educational video about Kansas' advance voting process, used its social media platforms to combat misinformation about the process, and contacted voters whose ballots were challenged by county election officers but whom the county was unable to reach. It also played an integral role in registering over 9,000 voters during that cycle. The mission of Kansas Appleseed is to educate and engage voters in traditionally underrepresented populations in Southwest and Southeast Kansas.
The Center works closely with disabled Kansans and strives to increase voter registration and participation among that population to ensure they are equipped to make their voices heard through the voting process.
Although consistently, and without reservation, the appellants make their respective affiliations known when conducting activities in the community, on occasion an attendee at their events has mistaken one of their volunteers for a county election official. When such incidents occur, the volunteers quickly clarify which organization they represent and that they are not election officials.
During the 2021 Kansas legislative session, the Legislature passed Senate Substitute for House Bill 2183, which contained various new laws bearing on election matters. Governor Kelly concluded such laws were not warranted and vetoed the bill. The Kansas Legislature overrode the veto, however, and the law went into effect on July 1, 2021. L. 2021, ch. 96, § 3.
In relevant part, the bill made it a severity level 7, nonperson felony to falsely represent oneself as an election official. False representation of an election official is knowingly (when one is not an election official):
In the wake of the law's passage, the appellants cancelled or curtailed various scheduled events. They feared that if their volunteers continued to engage in their respective organization's standard activities it would subject them to prosecution under the new statute.
In June 2021, the appellants moved for a temporary injunction on the grounds that K.S.A. 2021 Supp. 25-2438(a)(2) and (a)(3) violated their rights under section 11 of the Kansas Constitution Bill of Rights. The appellees responded, in part, that the appellants lacked standing to advance their challenge because they failed to identify any statements made or efforts undertaken that demonstrated individuals who engaged in the type of voter outreach programs conducted by the appellants ran afoul of the provision.
The appellees explained that the impetus for the law was an incident that occurred during the previous election cycle. Specifically, the distribution of letters that purported to be from an official agency and contained confusing or inaccurate information pertaining to critical electoral matters, as well as multiple advance ballot applications, and directions to what appeared to be legitimate websites where voters could complete information to receive advance ballots. The appellees asserted that only those individuals who knowingly engage in activities designed to give the false appearance they are election officials, or would cause a person to so believe, were at risk of prosecution under the statute. Thus, according to the appellees, the statute did not prohibit the appellants from engaging in their typical voter registration and advocacy efforts.
On July 27, 2021, the Douglas County District Attorney publicly announced she would not prosecute cases under the new law. In her opinion, the law was too vague, overbroad, and criminalized essential efforts to engage Kansans in the democratic process.
The Kansas Attorney General issued a statement in response to assure Kansans that violators of the law would still be prosecuted:
" "
The district court conducted a hearing on the appellants' motion. Following a review of the parties' extensive filings, evidentiary affidavits, and oral arguments, it declined to order an injunction. The court bypassed the standing question and concluded that the relief requested could not be granted because the appellants failed to demonstrate a substantial likelihood of eventually prevailing on the merits of their claim.
The appellants now bring the matter before us to resolve.
Laws that demand transparency in the identities of those voices disseminating voting and election information carry the potential to impose impermissible burdens on the exercise of free speech under the First Amendment. The appellants consist of four separate groups that actively promote civic engagement by conducting various voter outreach and education events throughout the State—League of Women Voters, Kansas Appleseed, Loud Light, and the Center. Operating under the belief the aforementioned impermissible burdens were realized here with the Kansas Legislature's passage of K.S.A. 2021 Supp. 25-2438, which prohibits the false representation of oneself as an election official, the appellants unsuccessfully moved the district court to temporarily enjoin enforcement of the second and third subsections of that provision.
A three-prong test must be satisfied for an association to sue on behalf of its members: (1) the members must have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires participation of individual members. Sierra Club v. Moser , 298 Kan. 22, 33, 310 P.3d 360 (2013) . With the exception of standing, as will be fleshed out in the forthcoming analysis, we have no qualms with the organizations advancing this challenge on behalf of their members.
Our first obligation is to determine whether we have jurisdiction over this matter. The starting point for that inquiry is Article 3, § 1 of the Kansas Constitution which grants the "judicial power' " of the State to the courts. Judicial power is characterized as the authority to hear, consider, and determine controversies between litigants. Baker v. Hayden , 313...
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Wells v. Kan. Corp. Comm'n
...had standing before the Commission is a question of law over which our review is unlimited. League of Women Voters of Kansas v. Schwab, 62 Kan.App.2d 310, 317, 2022 WL 2184823, at *4 (Kan. App. 2022) ("[S]tanding, like other jurisdictional issues, is a question of law subject to unlimited r......