Rushed bill still lingers
Lawmaking process for election law criticized before Supreme Court
Attorneys from both sides of a lawsuit were critical of how Kansas legislators drafted an election law three years ago and argued over whether the Kansas Supreme Court should essentially rewrite the law in order for it to be construed as constitutional.
An attorney for the for voting rights advocates challenging the law, the attorney for the state defending the law and at least one Kansas Supreme Court justice all took issue with how the 2021 Legislature crafted a piece of House Bill 2183.
While attorneys argued before the high court last week, lawmakers were busy advancing a bill to amend the 2021 law that state officials say would fix the problem. Voter advocacy groups say the new bill, House Bill 2618 does not go far enough to alleviate their concerns.
At issue is a piece of that 2021 law that makes it a felony crime to give the appearance of impersonating an election official, which the League of Women Voters, Loud Light and other plaintiffs say effectively criminalizes voter registration drives.
At issue is last week’s oral arguments before the Supreme Court was the denial of a temporary injunction. Elisabeth
Frost, an attorney representing the voter advocacy groups, said that since the law passed, seven elections have passed where the plaintiffs have not held voter registration drives out of fear of arrest and prosecution.
Bradley Schlozman, an attorney representing the defendants, including Secretary of State Scott Schwab and Attorney General Kris Kobach, argued that wasn’t the intent.
Schlozman said the Legislature was trying to address voter confusion during the 2020 election, but legislators “may not have drafted it in the best possible manner.”
Justice Dan Biles likened that to: “You can kill an ant with an atom bomb, and that’s pretty effective, but it does a lot more.”
Lawmakers never held public committee hearings on the impersonation piece of the legislation.
“The speculation about what the Legislature was trying to get to with these laws is completely spun from whole cloth,” Frost said. “These laws were barely discussed. It was a gutand-go.
The language was put into the bill in the Senate, and the only discussion was in the conference committee.
“In that discussion, legislators identified some of these problems saying, ‘Oh, no, this looks like language that could catch up activities by the League of Women Voters, we really should do something to change this language.’ And the conference committee refused to do it. So the idea that this court can now rewrite this legislation to do with the conference committee refused to do is obviously beyond what courts usually do.”
Schlozman didn’t defend the legislative process. He urged the Supreme Court to read into the law.
“I will acknowledge that this legislation did not represent the high watermark of legislative draftsmanship,” Schlozman said. “But I think that when you apply the statute in a manner that is designed to allow it to pass constitutional muster — which under the case law, I believe that’s what the court must do — I think that it can be read in a way that would then ensure that the individual has that sufficient criminal culpability in every aspect of its conduct.”
“We need to read in to the statute to make it constitutional, in your view,” replied Chief Justice Marla Luckert.
Schlozman said the court can call it “reasonably reading into it, or simply construing it, in a way.”
Frost said the state “relied on this rewriting of the statute.”
Schlozman said “this statute can be applied in a constitutional manner” if the court uses “traditional rules of statutory construction.” He said that case law on free speech cases tells courts they have “a duty to, if necessary, insert words … to ensure that the only thing prohibited is nonprotected conduct.”
Jason Alatidd is a Statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd .