The Topeka Capital-Journal

Rushed bill still lingers

Lawmaking process for election law criticized before Supreme Court

- Jason Alatidd Topeka Capital-Journal USA TODAY NETWORK THE TOPEKA CAPITAL-JOURNAL FILE PHOTOS

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 .

 ?? ?? Elisabeth Frost is seen here arguing before the Kansas Supreme Court on a 2021 election law, and she was back before the seven justices last week for further arguments.
Elisabeth Frost is seen here arguing before the Kansas Supreme Court on a 2021 election law, and she was back before the seven justices last week for further arguments.
 ?? ?? Brad Schlozman, an attorney representi­ng Secretary of State Scott Schwab and Attorney General Kris Kobach, told the Kansas Supreme Court that the 2021 election law he is defending “did not represent the high watermark of legislativ­e draftsmans­hip.”
Brad Schlozman, an attorney representi­ng Secretary of State Scott Schwab and Attorney General Kris Kobach, told the Kansas Supreme Court that the 2021 election law he is defending “did not represent the high watermark of legislativ­e draftsmans­hip.”

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