Those who do not spend their days thinking about election law may be surprised to learn that the federal Constitution does not guarantee the right of individuals to vote.[1] State legislatures determine whether to hold elections both at the state and federal level.[2] And just as the state can give individuals the right to participate in elections, it may limit that right, as long as it does not violate the Equal Protection Clause or Due Process Clause in doing so.[3]

In absence of a federal constitutional right to vote, challenges to voting statutes are often brought under state constitutions. One such challenge was brought in Kansas in 2021. In League of Women Voters of Kansas v. Schwab, organizations and individuals sued the Kansas Attorney General and Secretary of State, challenging three of the state’s recently passed voting statutes as violative of the Kansas Constitution.[4] The three statutes were:

  • The False Representation statute, which criminalizes knowingly “engaging in conduct that gives the appearance of being an election official; or engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official.”[5]
  • The Signature Requirement statute, which prohibits election officials from counting a ballot if that ballot is not signed or if the signature does not match the voter’s signature on file.[6] The statute requires election officials to contact the voter and give him an opportunity to cure the defect.[7]
  • The Ballot Collection statute, which prohibits anyone from collecting more than ten ballots at a time and dropping them off at the county election office unless the person also has a sworn statement that he or she has not influenced the votes.[8]

The plaintiffs argued that the False Representation statute violated their right to free speech because it punished innocent speech as well as deliberate misrepresentations.[9] They also argued that the Signature Verification statute violated the unenumerated “right to vote” allegedly located in Sections 1 and 2 of the Kansas Bill of Rights and Article 5, Section 1 of the Kansas Constitution.[10] And they argued the Ballot Collection statute violated the same rights to vote and to free speech.[11]

These claims arrived at the Kansas Supreme Court piecemeal and met with varying degrees of success once there. First, reversing the district court, the court held that the False Representation statute violated the Constitution because it suppressed protected speech and was not justified by the harm the state intended to prevent.[12] It then affirmed the district court’s holding that the Kansas Constitution does not recognize a natural, fundamental right to vote which the legislature cannot reasonably regulate.[13] And because the constitution permits the legislature to require proof that a person is eligible to vote before counting his ballot, the Signature Verification Requirement statute did not violate any “right to vote” or right to suffrage.[14] Finally, the court affirmed the district court’s holding that the Ballot Collection statute was constitutional.[15]

Background: The Kansas Constitution

The Kansas Constitution begins with its Bill of Rights. First among these is an assurance that natural rights are protected: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”[16] The language, drawn from the Declaration of Independence, has no counterpart in the federal Constitution. The Kansas Supreme Court has read Section 1 to confer substantive, fundamental rights.[17] While the contours of those rights are now being developed,[18] it is clear that, to be protected by Section 1, a right must be deemed a “natural right.”[19]

Section 2 protects equal political power and privileges:

All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.[20]

The equal protection provision of Section 2 is “given much the same effect as the clauses of the [federal] Fourteenth Amendment relating to due process and equal protection of the law.”[21] This section also declares that the source of political power is the people, who delegate their power to elected representatives and officers.[22] But it does not address how the people delegate that power or who specifically may delegate that power.[23]

The how is provided in Article IV of the Kansas Constitution: “All elections by the people shall be by ballot or voting device, or both, as the legislature shall by law provide.”[24] That is, the people have delegated the mechanics of elections to their elected representatives, who may impose reasonable regulations.[25] 

The who is provided by Article V. “Every citizen of the United States who has attained the age of eighteen years and who resides in the voting area in which he or she seeks to vote shall be deemed a qualified elector.”[26] The legislature cannot add to these requirements to be a “qualified elector.” It may, however, ensure that voters are qualified by requiring “proper proofs” of eligibility.[27]

Returning to the Bill of Rights, Section 11 provides that “all persons may freely speak . . . .”[28] The free “speech protections afforded by Section 11 are, at a minimum, coextensive with the First Amendment.”[29] So Section 11 prohibits overbroad speech restrictions, and restrictions on speech must be tailored to achieve the government’s interest.

At the Supreme Court

The False Representation Statue Is Unconstitutionally Overbroad

The Kansas Supreme Court first considered whether the false representation statute violated Section 11—Kansas’s free speech provision that is analyzed the same way as the First Amendment—because it was overbroad. The overbreadth test first asks whether the statute prohibits protected speech.[31] If so, the court considers whether “the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep.’”[32]

The court rejected the state’s argument that the statute only applies when a person knowingly represents himself as being an election official, and therefore only criminalizes “intentional misrepresentations and deceptive behavior”—i.e., unprotected speech.[33] Instead, the court found that the statute criminalized speech that a person knows may cause occasional confusion, even if the person does not intend to deceive, if, for example, the listener was unreasonable.[34] In fact, the plaintiffs had evidence that such speech had been punished in the past.[35] Speech that could confuse unreasonable listeners is protected speech.

The court then held that the lawful speech suppressed by the false representation statute was substantial when compared to the harm that would befall the state if people impersonated voting officials, potentially confusing voters.[36] Accordingly, the statute was overbroad. The court remanded to the district court to consider the remaining temporary injunction factors with respect to the False Representation statute.[37]

The Ballot Collection Statute Does Not Impair a Fundamental Right to Vote

The court then considered whether the ballot collection statute violated an unenumerated, fundamental “right to vote” implicit in Section 1 of the Kansas Bill of Rights. 

There is a long line of cases, both in Kansas and in federal courts, that assert that the “right to vote” is not a fundamental, natural right.[38] Rather, it is a political right. Therefore, the court held, any such right is not protected by the Section 1, but could be located in Section 2.[39]

Section 2 guarantees “the people” the right to delegate their political authority to their elected representatives, including both the legislature and executive officers. And, the court held, the state could require “the people” to prove their eligibility to vote—including by verifying that a person is who she says she is by checking her signature. Having a person sign their ballot does not change who is eligible to vote; it simply ensures that only votes from eligible voters are counted. Thus, the Signature Verification statute was a lawful exercise of the “proper proofs” clause of Article V.[40]

Ballot Collecting Is Not Speech

Finally, the court held that the ballot collection restriction did not violate the state constitution.[41]

Having already held there is no fundamental right to vote in the Kansas Constitution, the court noted that Article V allows the state to regulate the mechanics of elections as long as it does not unequally prevent one group of eligible voters from voting.[42] And even though some voters vote by having someone else collect their ballots, the state provided an alternative to ballot collecting for those unable to travel to the polls: voting by mail.[43] So restricting the number of ballots a person can collect and drop off does not unreasonably or unequally prevent any one group from voting.[44]

Second, the court said that ballot collecting is not speech, and therefore does not implicate Section 11 or the First Amendment.[45] A person is not speaking or expressing a view when collecting and dropping off ballots. So, the legislature was not limiting speech when it limited how many ballots a person may collect and drop off.[46]

Conclusion

There is no natural, fundamental right to vote in Kansas. There is, however, a political right, and any eligible person should be able to cast a ballot. The state may regulate the mechanics of elections as long as those regulations do not violate due process or equal protection.

 

**All opinions and views are the author’s and do not reflect the views of the Kansas Office of the Attorney General.

 

[1] Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam) (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.”).

[2] U.S. Const. art. II, § 1.

[3] Bush, 531 U.S. at 104-05.

[4] 549 P.3d 363, 377 (Kan. 2024).

[5] Kan. Stat. Ann. § 25-2438(a)(2), (a)(3) (West 2021).

[6] Kan. Stat. Ann. § 25-1124(b), (h) (West 2022).

[7] Id.

[8] Kan. Stat. Ann. § 25-2437 (West 2022).

[9] League of Women Voters, 549 P.3d 363 at 370.

[10] Id.

[11] Id.

[12] Id. at 375.

[13] Id. at 376-81.

[14] Id. at 382.

[15] Id. at 385-86

[16] Kan. Const. Bill of Rts. § 1.

[17] League of Women Voters, 549 P.3d at 405.

[18] See, e.g., Rivera v. Schwab, 512 P.3d 168, 180 (2022), cert. denied sub nom. Alonzo v. Schwab, 143 S. Ct. 1055 (2023) (discussing recent developments in Section 1 caselaw).

[19] See Hodes & Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461, 480 (Kan. 2019); State v. Carr, 502 P.3d 546, 569 (Kan. 2022), cert. denied, 143 S. Ct. 581 (2023).

[20] Kan. Const. Bill of Rts. § 2.

[21] Rivera, 512 P.3d at 180.

[22] League of Women Voters549 P.3d at 377.

[23] Id.

[24] Kan. Const. art. IV, § 1.

[25] League of Women Voters, 549 P.3d at 378.

[26] Kan. Const. art. V, § 1.

[27] Id. § 4.

[28] Kan. Const. Bill of Rts. § 11.

[29] League of Women Voters, 549 P.3d at 372.

[30] Id. Cf. Outdoor Sys., Inc. v. City of Lenexa, Kan., 67 F. Supp. 2d 1231, 1235 n.1, 1240 (D. Kan. 1999) (Section 11 protects the same rights as the federal First Amendment).

[31] Id. at 372.

[32] Id. (quoting United States v. Hansen, 599 U.S. 762, 770 (2023)).

[33] Id. at 374.

[34] Id. at 375.

[35] Id.

[36] Id.

[37] Id. at 375-76

[38] Id. See also, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); Reynolds v. Sims, 377 U.S. 533, 562 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); Moore v. Shanahan, 486 P.2d 506 (Kan. 1971); Hammond v. Brinkman, 246 P.2d 345 (Kan. 1952); State ex rel. Parker v. Corcoran, 128 P.2d 999 (Kan. 1942); Wheeler v. Brady, 15 Kan. 26, 33 (Kan. 1875).

[39] League of Women Voters, 549 P.3d at 387.

[40] The plaintiffs also made an alternative argument that the signature requirement violated the equal protection provision of Section 2. Because the district court had not reached that issue, the court remanded for it to consider the issue.

[41] League of Women Voters, 549 P.3d at 386.

[42] Id. at 384.

[43] Id. (citing Kan. Stat. Ann. 25-433 (West 2023); Kan. Stat. Ann. 25-1122(c) (West 2023)).

[44] Id.

[45] Id. at 384-85.

[46] Id. at 385.

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