Kansas Ban on Private Parties’ Partially Prefilling Voters’ Mail Ballot Applications Upheld

A short excerpt from today’s longish Tenth Circuit opinion in VoteAmerica v. Schwab, by Judge Timothy Tymkovich, joined by Judges Michael Murphy and Joel Carson:

To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….

Relying on the political reaction against mail-in voting and Kansas’s failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….

[W]e REVERSE the district court’s judgment. The district court found an improper purpose without evidence from the Prohibition’s justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….

The court held the law was viewpoint-neutral (and content-neutral):

VPC [plaintiff Voter Participation Center] bears the burden to show that the Prohibition was enacted with viewpoint-discriminatory purpose…. A law is adopted with improper purpose if it was adopted “because of disagreement with the message the speech conveys.” …

We do not, however, assume that a law is adopted with improper purpose simply “because it may disproportionately affect speech on certain topics,” or because “it has an incidental effect on some speakers or messages but not others.” McCullen v. Coakley (2014)….

Kansas contends that the district court wrongly inferred improper purpose when the Prohibition’s text, enactment history, and the State’s justifications for the law evince no such purpose. We agree.

First, Kansas’s stated interests in the Prohibition are not intrinsically tied to restricting a viewpoint. Kansas stated that the Prohibition is meant to (1) minimize voter confusion; (2) facilitate efficiency in election administration; and (3) foster confidence in and protect the integrity of the electoral process. These are each legitimate interests—and they are independent of any alleged purpose in restricting VPC’s pro-mail-in-voting viewpoint….

VPC counters that we must look beyond Kansas’s stated interests to the Prohibition’s operation. For, if “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that [advances a certain viewpoint],” we should not conclude that the provision was enacted with a proper purpose “simply because the statute itself and those defending it in court say that it is[.]” See McCullen (Scalia, J., concurring). VPC highlights the Prohibition’s disproportionate effect on the pro-mail-in-voting viewpoint. It urges that the Prohibition functions to target only mail-in voting advocates because those against mail-in voting would not prefill applications.

That may be true, but caselaw forecloses VPC’s argument. Without more, incidental disproportionate effect on one subject or viewpoint does not prove improper purpose. See McCullen (majority opinion) (“[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.”)….

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….

And the court held that the law passed the intermediate scrutiny applicable to content-neutral speech restrictions:

Speech restrictions survive intermediate scrutiny if they “(a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” …

Kansas’s stated interests are significant… Kansas identified the harm of voter confusion that the prefilled applications caused. The State says some voters called in angry and perplexed by inaccurate prefilled applications. And it points to others who unnecessarily submitted multiple applications after receiving the prefilled forms. Kansas identified the administrative burdens caused by the erroneously prefilled applications, duplicate submissions (caused, at least in part, by the prefilling confusion), and time spent assuaging voters’ concerns and confusion. And Kansas identified lost confidence in the electoral process. County election officials were flooded with calls and letters from voters frustrated by the purported incompetence of their county because of errors in the prefilled applications….

The Prohibition is also adequately tailored to address Kansas’s legislative interests and does not restrict substantially more speech than necessary. And because the Prohibition minimally burdens speech, it was not necessary to point to alternative regulatory schemes.

First, minimizing voter confusion. Kansas cites evidence of voter confusion caused by the prefilled applications. Kansas showed that the prefilled applications caused confusion among voters because of the applications’ errors and many voters’ beliefs that they needed to sign and mail prefilled applications even if they had already submitted one.

The Prohibition is tailored to alleviate this harm. Because of the Prohibition, voters will receive blank ballot applications with no error, removing any confusion resulting when voters received erroneous applications but had previously reported their information change to the county election office. And we can reasonably infer that some voters who felt compelled to submit the prefilled applications will not feel compelled to do the same when they are blank….

[T]he evidence here directly relates to the Prohibition—county officials testified to voter confusion resulting from (1) error in prefilled applications, and (2) receipt of prefilled applications, when voters had already submitted applications….

The Prohibition also does not burden substantially more speech than necessary to minimize voter confusion resulting from prefilled ballot applications. Kansas’s solution—outright prohibiting the prefilling of applications—was reasonable and “the threat to free speech posed by the Prohibition is sufficiently small.” There are few (if any) less-burdensome alternatives that could cure the problem because “the use of forms by the government inherently requires content restrictions.” This showing is sufficient to survive narrow tailoring….

Second, administering efficient elections. Kansas presented evidence of the administrative burden caused by the erroneously prefilled applications (and duplicate submissions of prefilled applications). Kansas demonstrated that county offices regularly received erroneous prefilled applications and duplicate applications because voters believed they needed to submit the prefilled applications they received. Kansas produced evidence that these erroneous prefilled ballots and duplicate submissions produced a significant administrative burden. The three to five minutes processing time for an accurate, non-duplicate application could increase to over thirty minutes. The Prohibition alleviates this processing burden by reducing the amount of erroneously prefilled and duplicate applications county offices receive.

VPC nevertheless counters that Kansas failed to provide evidence of harm because it did not show how many duplicate or inaccurate prefilled applications county offices received. But the record demonstrates that at least 3% of VPC’s Kansas voter database was inaccurate, suggesting that VPC sent more than 15,000 erroneous applications to Kansans during the 2020 general election. And county offices reported, without providing exact numbers, that the number of duplicate and erroneous prefilled applications skyrocketed. Kansas offers sufficient evidence supporting the claim that prefilled applications caused administrative harm.

To rebut Kansas’s showing of narrow tailoring, VPC also relies on the district court’s conclusion that the “real issue” producing the administrative burden was duplicate applications. But Kansas shows that it expended extra resources on duplicates and error-riddled prefilled applications. And Kansas points to evidence showing that voters submitted duplicates in part because they were prefilled—they thought they had to.

The district court reached the contrary conclusion that the prefilled applications did not cause administrative harm in large part because Cox and Shew testified that in some ways they preferred prefilled applications. But the district court erred in concluding that the Prohibition’s potential allowance of one problem—increased human error in applications—negated the adequacy of the Prohibition’s tailoring to a different problem, third-party error in the prefilled applications. Kansas has a right to act prophylactically to minimize administrative burden, and to do so in its best judgment by addressing one problem contributing to it.

Perhaps the Prohibition will be net neutral. But Kansas tailored the Prohibition to a discrete problem producing an administrative burden and directly ameliorated that problem. And because the Prohibition does not burden substantially more speech than necessary to further Kansas’s interest in facilitating efficient elections, the Prohibition is narrowly tailored.

Third, fostering confidence in election integrity. Kansas offers record evidence of voter frustration and distrust caused by the prefilled ballot applications. Howell described voters venting frustration at the alleged incompetence of their county upon receiving applications that contained a wrong name and address; some who had previously communicated changes to the office were especially frustrated. The Prohibition addresses this distrust and frustration by removing the source of the voters’ complaints….

Finally, the Prohibition leaves open ample alternative channels of communication. VPC “remains free to choose what avenue of communication it will use to advocate for mail voting, including the use of unsolicited mailers.” It may even include a sheet with the previously prefilled information alongside a blank application….

Because the Prohibition is adequately tailored under intermediate scrutiny, its minimal restriction on the content of VPC’s speech is permissible under the First Amendment.

Bradley J. Schlozman, Scott R. Schillings and Garrett R. Roe (Hinkle Law Firm LLC) represent defendants.