Calling voting a fundamental right, KS Court of Appeals rules restrictions face high bar

The Kansas Court of Appeals ruled Friday that voting is a fundamental right and that restrictions on it must clear the highest possible bar, in an opinion drawing upon a prior ruling that upheld abortion rights under the state constitution.

The appeals court found that a state law limiting the number of advance ballots someone can deliver restricts the right to vote. It also ruled a provision requiring election officials to verify signatures on advance ballot envelopes impairs the right to vote. If the opinion stands, lawmakers may have a much more difficult time in the future passing limits on access to the polls or advance voting.

The opinion is a victory for voting rights advocates who sued to overturn the law. But Kansas Attorney General Kris Kobach, a Republican who has long championed voting restrictions, sharply attacked the ruling and said he will appeal it.

The opinion demonstrates the continuing consequences of the Kansas Supreme Court’s landmark 2019 decision upholding abortion access by finding that bodily autonomy is a fundamental right under the state constitution. The appeals court extensively referenced that 2019 decision, finding that restrictions on voting — as a fundamental right — should face strict scrutiny, the highest standard of legal review.

“There is no question that the right to vote is a fundamental right protected by the Kansas Constitution. The right to vote is the foundation of a representative government that derives its power from the people. All basic civil and political rights depend on the right to vote,” the appeals court said in the 48-page decision on Friday written by Judge Stephen Hill, who was appointed by Democratic Gov. Kathleen Sebelius in 2003.

“Our Supreme Court has instructed that strict scrutiny ‘applies when a fundamental right is implicated,’” Hill wrote, quoting from the 2019 abortion decision. “We follow the command and presume that strict scrutiny applies.”

The appeals court didn’t strike down the law, but sent the case back to a district court judge for review under strict scrutiny. The decision could be appealed to the Kansas Supreme Court.

Friday’s decision came as part of a lawsuit over legislation approved by the Republican-controlled Legislature in 2021 over Democratic Gov. Laura Kelly’s veto. The legislation was part of a nationwide push by Republican state legislators to use unfounded claims of voter fraud during the 2020 election as grounds for revising election rules.

“The message is don’t create laws that adversely affect the right to vote,” Pedro Irigonegaray, a Topeka lawyer who represented the League of Women Voters of Kansas, Loud Light, the Kansas Appleseed Center for Law and Justice and the Topeka Independent Living Resource Center, which all sued to block the law.

“This all came about as a consequence of a false premise,” he said. “The false premise was that elections were rigged, that elections were somehow fixed.”

The bills made several revisions to voting law, limiting the number of advance ballots a Kansan can return on behalf of other voters to 10 and curbing the powers of the governor, secretary of state and courts over elections. The legislation also required election officials to match signatures on mail-in-ballots with voter signatures on file before counting the vote and banned the distribution of advance mail applications from out-of-state groups.

Kobach in a statement called the decision “clearly wrong” and “the most radical election law decision in the country.”

“The decision is directly contrary to what the U.S. Supreme Court has said, as well as what every state supreme court has said on the matter. The decision is also illogical,” Kobach said.

“Having election officials make sure that it is your signature on your advance ballot doesn’t hurt your right to vote. It protects your vote from being stolen by someone else. This is especially true because the Kansas statute gives the voter a second chance to sign again when the signatures don’t match.”

He didn’t directly address the ruling’s comments on the ballot return provisions.

Kansas Secretary of State Scott Schwab, a Republican, said his office was reviewing the decision and that it “appears to be a substantial change to the judicial standard of reviewing state election laws.”

Kansas currently has a strict photo voter ID law and Republicans in the Legislature are actively pursuing more changes to election laws.

“Today’s decision was shocking and endangers every election integrity measure currently on the books,” Kansas House Speaker Dan Hawkins, a Wichita Republican, said in a statement.

The Kansas House and Senate have both approved bills that would eliminate an existing three-day grace period for mail-in ballots to arrive at an election office after Election Day. Kobach has backed an effort to severely restrict drop boxes, arguing their existence makes it impossible to enforce the challenged law restricting returning other voters’ advanced ballots.

Voting rights advocates said Republican to reconsider these efforts in the wake of Friday’s decision.

“I would hope that gives legislators kind of pause and calms them down,” said Davis Hammet, president of Loud Light, a Kansas-based civic engagement group that participated in the lawsuit.

“And instead of just rushing to pass legislation there’s a more serious attitude towards, ‘Oh, do we actually know that a problem exists?’”