TOPEKA – Kansas Supreme Court justices Wednesday expressed concern about the “chilling effect” a 2021 law could have on volunteers from the League of Women Voters and others who participate in voter registration campaigns.
Part of the legislation makes it a crime to engage in behavior that would lead someone to believe you are an election worker. In response, several nonprofits suspended or limited efforts to educate and assist potential voters.
The League of Women Voters has joined Loud Light, Kansas Appleseed and the Topeka Independent Living Resource Council in challenging the provisions of the law. A district court judge and an appellate court panel dismissed the case on the grounds that these organizations have been unable to demonstrate how the law affects their operations.
In oral argument Wednesday, Judge Melissa Standridge said the appellate court made a mistake.
Standridge fought with Bradley Schlozman, who defended the law on behalf of the state.
“This case presents a completely fabricated litigation in which, for unexplained reasons, the plaintiffs are asking the court to interpret the statute in the most unreasonable way possible in order to expose themselves to criminal liability,” Schlozman said. “The statute does not support the interpretation they have put forward.”
Elisabeth Frost, a Washington, DC-based attorney with the Elias Group, filed arguments on behalf of the nonprofits that filed the lawsuit.
She said the League of Women Voters has helped Kansans register to vote for more than 100 years. The other organizations involved in the litigation are “deeply committed to this work,” Frost said, and have “severely curtailed their efforts” out of fear that their employees and volunteers will be charged with a felony crime.
“It’s frankly preposterous to suggest that they filed this lawsuit and reduced their business just for the hell of it,” Frost said. “They are afraid because plain language scares them.”
Schlozman’s argument was that no reasonable person would believe that a volunteer on a voter registration campaign was an election worker, especially if that volunteer misled someone with the wrong idea.
But multiple justices, including Standridge, Evelyn Wilson and Caleb Stegall, have pointed to the absence of language in the law that would define a “reasonable person.” They appeared sympathetic to the plaintiffs’ argument that someone would mistake a volunteer for an election employee.
Wilson wondered, hypothetically, whether he would be breaking the law by distributing a brochure produced by the Secretary of State’s office without including a disclaimer stating that he is not actually the Secretary of State.
“Don’t you think that’s pretty chilling?” she said.
Schlozman said the state has an interest in protecting the public. The notion that anyone would mistake a nonprofit volunteer for an election worker is “subjective,” she said.
“Not subjective,” Standridge said. “They have experienced it. They have affidavits that show, “People misunderstood us.” “
Schlozman said the affidavits indicate that mistaken identity is inevitable, which caused Standridge to shout, “No!” The affidavits, she pointed out, make it clear that people who work at voter registration booths are sometimes mistaken for election workers.
“If so, Your Honor, then where do you draw the line?” asked Schlozmann.
“Exactly,” Standridge said. “Do you follow the limit of one in 10,000 people? Or is it five people out of 10,000? Is that 30 people?”
Based on Schlozman’s argument, Standridge said, there should be an evidentiary hearing for every person who mistakes the identity of a volunteer.
His examples: “Are you reasonable? What is your educational background? What’s your IQ? What is your level of experience with voting? What is your level of experience in community service?
Schlozman countered with a pop culture reference: A man asks a woman if she has a chance, and she tells him “one in a million.” So, he replies, I have a chance.
“In that kind of scenario, I mean, sure, I’m statistically under that theory,” he said. “There could and inevitably will be the willful blind, the people who deny the election.”
If the number is one in 10,000, Schlozman said, organizations need not worry.
“With the threat of going to jail? One in 10,000?” said Standridge. “When, frankly, I bought a lottery ticket when it cost a billion dollars, okay? Why should I, at one in 10,000, risk my freedom?
Frost, the plaintiffs’ attorney, called attention to Schlozman’s reference to election deniers.
“I don’t think this court can ignore that this is the context in which it was passed, a context in which election officials are routinely harassed and threatened in the United States, yet the Legislature has not included a standard of reasonable person,” Frost said.