VoteAmerica v. Schwab et al
MEMORANDUM AND ORDER overruling 26 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss for Lack of Jurisdiction; and sustaining 24 Motion for Preliminary Injunction. The Court hereby enjoins enforcement of HB 2332. Pending further order of the Court, this Order shall remain effective until the conclusion of the case. Signed by District Judge Kathryn H. Vratil on 11/19/2021. (kas)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VOTEAMERICA and VOTER
SCOTT SCHWAB, in his official capacity as
Secretary of State of the State of Kansas;
DEREK SCHMIDT, in his official capacity as )
Attorney General of the State of Kansas;
STEPHEN M. HOWE in his official capacity
as District Attorney of Johnson County,
MEMORANDUM AND ORDER
VoteAmerica and Voter Participation Center bring suit for declaratory and injunctive relief
against Scott Schwab in his official capacity as Kansas Secretary of State, Derek Schmidt in his
official capacity as Kansas Attorney General and Stephen M. Howe in his official capacity as
District Attorney of Johnson County. Complaint For Declaratory And Injunctive Relief (Doc. #1)
filed June 2, 2021. Plaintiffs allege that defendants violated their First and Fourteenth Amendment
rights and breached the Dormant Commerce Clause. Plaintiffs seek a preliminary injunction
against enforcement of two provisions of HB 2332, which will be codified as K.S.A. § 25–1122:
(1) Section 3(l)(1), which bars persons and organizations that are not residents of or domiciled in
Kansas from mailing or causing to be mailed advance mail ballot applications to Kansas voters
and (2) Section 3(k)(2), which criminalizes mailing personalized advance ballot applications.
On September 8, 2021, the Court held an evidentiary hearing on plaintiffs’ motion for
preliminary injunction. This matter is before the Court on Defendants’ Motion To Dismiss
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Plaintiffs’ Complaint (Doc. #26) filed July 9, 20211 and Plaintiffs’ Motion For Preliminary
Injunction (Doc. #24) filed July 8, 2021.
Motion To Dismiss
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as
true all well-pleaded factual allegations and determines whether they plausibly give rise to an
entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss,
a complaint must contain sufficient factual matter to state a claim which is plausible—not merely
conceivable—on its face. Id. at 679–80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To determine whether a complaint states a plausible claim for relief, the Court draws on its judicial
experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions.
See id. at 678. Plaintiffs make a facially plausible claim when they plead factual content from
which the Court can reasonably infer that defendants are liable for the misconduct alleged. Id.
However, plaintiffs must show more than a sheer possibility that defendants have acted
unlawfully—it is not enough to plead facts that are “merely consistent with” defendants’ liability.
Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a
formulaic recitation of the elements of a cause of action or naked assertions devoid of further
factual enhancement will not stand. Id. Similarly, where the well-pleaded facts do not permit the
Court to infer more than the mere possibility of misconduct, the complaint has alleged—but has
not “shown”—that the pleaders are entitled to relief. Id. at 679. The degree of specificity
On August 27, 2021, the Court overruled Defendants’ Motion To Dismiss (Doc.
#26) in part, finding that plaintiffs’ complaint was not subject to dismissal for lack of subject matter
jurisdiction. The Court reserved ruling on defendants’ arguments with regard to failure to state a
claim under Rule 12(b)(6), Fed. R. Civ. P.
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necessary to establish plausibility and fair notice depends on context; what constitutes fair notice
under Fed. R. Civ. P. 8(a)(2) depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242,
1248 (10th Cir. 2008).
When ruling on a Rule 12(b)(6) motion, the Court does not analyze potential evidence that
the parties might produce or resolve factual disputes. Jacobsen v. Deseret Book Co., 287 F.3d
936, 941 (10th Cir. 2002). A motion to dismiss does not ask the Court to analyze plaintiffs’
likelihood of success on the merits; rather, the Court must find only a reason to believe that
plaintiffs have a “reasonable likelihood of mustering factual support for the claims,” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), and that their claims are
“plausible.” Twombly, 550 U.S. at 570.
Highly summarized, plaintiffs’ complaint alleges as follows:2
Voting In Kansas
Kansas law permits any eligible voter to cast an advance ballot. Kansas has two types of
advance voting: advance voting in person (i.e., early voting) and advance mail voting.3 Advance
voting requires a voter to apply to a county election officer for a mail-in ballot. The Secretary of
State coordinates advance voting statewide by creating uniform procedures and forms. County
election officers administer voting locally by accepting and processing applications, providing
ballots to eligible voters, receiving ballots that have been cast and ultimately accepting or rejecting
ballots. County election officers also prepare and maintain lists of persons who have filed advance
voting applications. During the 2020 election cycle, the advance voting application form was
The Court assumes that the reader is familiar with the allegations of plaintiffs’
complaint and does not attempt to recite them in their entirety.
All references to advance voting are references to advance voting by mail. This
case does not involve early voting in person.
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publicly available on the web sites of the Kansas Secretary of State, local election offices and
various third parties.
To apply for an advance mail ballot, a voter must provide a Kansas driver’s license number,
a Kansas nondriver’s ID card number or another specified form of identification. A county election
officer must verify that the voter’s signature matches the signature on file in voter registration
records. Voters may cast advance ballots on or before Election Day, either by mailing completed
ballots or dropping off their ballots at a local election office.
In 2020, Kansas voters of all political persuasions turned out in historic numbers.
Particularly given COVID-19, Kansas also saw a steep increase in advance mail voting. More
than 1.3 million Kansans voted in the 2020 general election, nearly six per cent more than in 2016.
More Kansans voted by advance mail ballot in November of 2020 than the elections in 2016 and
2018 combined. Shortly after the 2020 election, the Secretary of State’s office stated that “Kansas
did not experience any widespread, systematic issues with voter fraud intimidation, irregularities
or voting problems. . . . We are very pleased with how the election has gone up to this point.”
In March of 2021, the Kansas Legislature introduced HB 2332 to regulate the advance
ballot application process. Governor Laura Kelly vetoed the bill on April 23, 2021. On May 3,
2021, the Kansas Senate and House overrode the Governor’s veto, and HB 2332 will become
effective on January 1, 2022. HB 2332, § 11.
HB 2332 contains two provisions (collectively, “Ballot Application Restrictions”) that are
at issue in this action.
Out-of-State Distributor Ban
HB 2332 bans any person from mailing an advance voting application or causing an
application to be mailed, unless the sender is a resident of Kansas or domiciled in Kansas.
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HB 2332, § 3(l)(1) (the “Out-of-State Distributor Ban”). This ban applies whether the sender is
mailing a single application in response to a request from an individual Kansas voter or is engaged
in mass mailing of unsolicited applications.
The legislation imposes a civil penalty of $20.00 for “[e]ach instance in which a person
mails an application for an advance voting ballot.” HB 2332, § 3(l)(3). Anybody can file a
complaint alleging a violation of the Out-of-State Distributor Ban, and the attorney general must
investigate all complaints. HB 2332, § 3(l)(2). The attorney general may also file suit against
anyone who violates this provision.
Personalized Application Prohibition
The “Personalized Application Prohibition” prohibits the mailing of any advance mail
ballot application that has been personalized with a voter’s information, even where the voter has
personally provided that information. The Prohibition applies to any person who by mail solicits
a registered voter to apply for an advance voting ballot and includes in such mailing an application
for an advance voting ballot. HB 2332, § 3(k)(1).
Personalized application violations are class C nonperson misdemeanors, which are
punishable by up to one month in jail and/or fines. HB 2332, § 3(k)(5); K.S.A. § 21-6602(a)(3).
The Personalized Application Prohibition does not apply to state or county election officials or to
entities which must provide information about elections under federal law. HB 2332, § 3(k)(4).
Plaintiffs are out-of-state, nonpartisan organizations which provide voter information,
applications and forms to facilitate political engagement by voters, including advance mail ballot
applications. Such organizations have long played a vital role in democracy by persuading citizens
to engage with the political process.
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VoteAmerica is a California-based 501(c)(3) nonprofit, nonpartisan organization. Its core
mission is to help eligible voters engage in the electoral process, emphasizing voting by mail.
VoteAmerica believes that voting by mail is the most effective way to ensure the broadest
participation in elections. To empower voters to exercise their votes, VoteAmerica provides access
to trusted election information, open platform technology and education programs.
VoteAmerica web site provides extensive guides and tools for voter registration, absentee, mail
and advance voting and voting in person in all 50 states, including Kansas. Its resources for
advance voting in Kansas include a guide to advance voting rules, deadlines, links to local election
offices, instructions and other relevant resources.
VoteAmerica engages voters by pairing tools and resources on its web site with other
modes of speech to help voters in the voting process. These communications guide voters to its
on line tools and resources and facilitate further communications with Kansas voters about the
political process. To amplify its message, VoteAmerica shares graphics, messaging and other
communications products with partners.
VoteAmerica’s primary resource for promoting advance voting in Kansas is an interactive
Absentee and Mail Ballot request tool. The tool allows voters to provide their names, addresses,
dates of birth, emails and phone numbers, and populate the ballot application forms with that
information. Voters receive the application forms with the voter-provided information precompleted. Voters then sign and complete the forms and send them to their local election officials.
The tool automatically signs up voters for follow-up communications from VoteAmerica to help
them vote in future elections. In addition to the VoteAmerica web site, the Absentee Mail Ballot
request tool is available on the web sites of partner organizations of VoteAmerica.
During the 2020 election cycle, the tool delivered personalized advance voting applications
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to Kansas voters by email. In four other states, voters have the option to receive a pre-printed
personalized application by mail. VoteAmerica is actively planning to offer this personalized
print-and-mail feature service to Kansas voters.
With its preprinted applications, VoteAmerica sends blank advance mail voting application
forms and pre-addressed, postage-paid envelopes. Expanding the print-and-mail feature will
enable VoteAmerica to reach a broader audience, including low-income and low propensity voters
with fewer resources and decreased access to postage and printing.
During the 2020 election cycle, at least 7,700 Kansas voters used the VoteAmerica tool to
receive a personalized ballot application. VoteAmerica helped more than 6,000 Kansans register
to vote, and at least 28,500 Kansas voters currently subscribe to VoteAmerica’s educational emails
and reminder text messages. VoteAmerica is invested in scaling its technology and outreach
programs to meet anticipated demand and plans to continue communicating educational messages,
assistance and reminders about voting.
Before the Legislature enacted HB 2332, VoteAmerica planned to keep offering its tool to
Kansas voters after January 1, 2022. Upon request, it also planned to use its print-and-mail feature
to mail advance mail voting applications to Kansas voters.
Voter Participation Center (“VPC”) is a Washington, D.C.-based 501(c)(3) nonprofit,
nonpartisan organization. Its mission is to provide voter registration, early voting, vote by mail
and get-out-to-vote resources and information to traditionally underserved groups, including
young voters, voters of color and unmarried women.
VPC has implemented direct mail programs to send mass mailers to its target demographic.
These mass mailers contain resources for eligible voters to submit voter registrations and absentee
ballot applications. VPC believes that direct mail is the most effective form of communicating
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with and helping Kansas voters. The mail campaign encourages advance voting. VPC uses
Kansas’ statewide voter registration files to identify registered voters who have not requested an
advance ballot application, and in 2020, it sent nearly 1.2 million advance voting applications to
Kansas voters. To facilitate these efforts, VPC has partnered with a 501(c)(4) organization called
the Center for Voter Information. VPC requests updated voter records from state election officials
to proactively remove voters who have already requested or submitted advance voting
VPC mailers include a cover letter encouraging voters to request and cast advance ballots;
printed copies of an advance ballot application from the Kansas Secretary of State web site; and
pre-addressed, postage-paid envelopes addressed to the county election offices. VPC personalizes
the voter’s application with the information from the state-generated registration records. The
cover letter clearly instructs the voter not to submit more than one request. The mailers encourage
voting by mail and help voters do so. Mailers sent to Kansans during the 2020 election cycle
included messages such as: “County election officials in Kansas encourage voters to use mail
ballots in upcoming elections,” “Voting by mail is EASY” and “You can even research the
candidates as you vote.” In the 2020 election cycle, an estimated 69,577 Kansas voters submitted
VPC-provided advance voting applications to their county election officials.
Before the Legislature enacted HB 2332, VPC planned to continue communicating and
helping Kansas voters by mailing personalized advance mail voting applications after January 1,
2022, and during the 2022 election cycle.
Scott Schwab is the Kansas Secretary of State. As the State’s chief elections official,
Schwab oversees all Kansas elections and administers the State’s election laws and regulations.
He also issues guidance and instructions to county election officers.
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Derek Schmidt is the Kansas Attorney General. As the State’s chief law enforcement
officer, Schmidt has the authority and discretion to investigate and prosecute violations of State
law, including criminal violations. HB 2332 requires Schmidt to investigate complaints alleging
violations of the Out-of-State Distributor Ban and permits him to prosecute such civil violations.
Stephen Howe is the District Attorney of Johnson County. Howe is responsible for
investigating and prosecuting all criminal violations of state law in Johnson County. Because
HB 2332’s Personalized Application Prohibition violations are class C nonperson misdemeanors,
Howe will prosecute these violations in Johnson County.
On June 2, 2021, plaintiffs filed suit against defendants in their official capacities, alleging
violations of the First and Fourteenth Amendments and the Dormant Commerce Clause.
Specifically, Count 1 alleges that the Ballot Application Restrictions violate the First Amendment
by targeting plaintiffs’ core political speech, i.e. their advocacy for advance mail voting,
communicated through mailing of advance ballot application packets. Count 2 alleges that the
Ballot Application Restrictions inhibit plaintiffs’ First Amendment right to associate with others
to encourage and help Kansas voters to vote by mail. Count 3 alleges that the Ballot Application
Restrictions are overly broad, regulating and chilling a substantial amount of plaintiffs’
constitutionally protected speech and associations. Finally, Count 4 alleges that the Out-of-State
Distributor Ban violates the Dormant Commerce Clause by facially discriminating against nonKansas residents, including plaintiffs, in restricting them from mailing advance voting applications
to Kansas residents.
As noted, plaintiffs bring four claims: (1) HB 2332 violates their First Amendment rights
to freedom of speech (Count 1); (2) HB 2332 violates their First Amendment rights to freedom to
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associate (Count 2); (3) HB 2332 is overbroad (Count 3); and (4) the Out-of-State Distributor Ban
of HB 2332 violates the Dormant Commerce Clause (Count 4). Pursuant to Rule 12(b)(6),
defendants ask the Court to dismiss plaintiffs’ complaint for failure to state a claim on which relief
may be granted.
As to Count 1, defendants argue that the Ballot Application Restrictions apply only to nonexpressive conduct, not to any form of speech, and that as a matter of law, they do not violate the
First Amendment. As to Count 2, defendants argue that when a state invokes its constitutional
authority to regulate elections, the restrictions on individual rights to associate—which will
inevitably ensue—do not violate the First Amendment. As to Count 3, defendants argue that as a
matter of law, the restrictions in question are not overly broad in violation of the First Amendment.
Finally, as to Count 4, defendants argue that the Dormant Commerce Clause does not apply to the
restrictions aimed at minimizing voter confusion, eliminating voter fraud and preserving the
limited resources of state election offices.
The Court considers each claim in turn.
First Amendment Freedom of Speech Claim (Count 1)
Plaintiffs allege that the Ballot Application Restrictions violate their freedom of speech
because they restrict their right to send packets which contain advance voting applications to
Kansas voters and thus target core political speech. Complaint (Doc. #1), ¶ 55. Plaintiffs argue
that in violation of the First Amendment, the Out-of-State Distributor Ban is content-based,
viewpoint-based and speaker-based, and targets only non-resident speakers and pro-mail voting
messages. Id., ¶¶ 82, 84. Plaintiffs also argue that the Personalized Application Prohibition singles
out personalized advanced voting applications, without prohibiting other forms of speech. Id.,
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Defendants ask the Court to dismiss Count 1 because HB 2332 “prohibits no spoken or
written expression whatsoever” and applies to non-expressive conduct, not to speech—and most
certainly not to core political speech. Defendants’ Memorandum In Support Of Motion To
Dismiss (Doc. #27) filed July 9, 2021 at 17, 20. Accordingly, the Court first analyzes whether
HB 2332 regulates speech—that is, whether the First Amendment even applies to plaintiffs’
application packets and personalized ballot applications.
The First Amendment, made applicable to the states by the Fourteenth Amendment,
provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. The First Amendment “literally forbids the abridgement only of speech,” but its
protection is not limited to just spoken or written words. Texas v. Johnson, 491 U.S. 397, 404
(1989). Conduct that is “sufficiently imbued with elements of communication”—known as
“inherently expressive” conduct—falls within the scope of the First and Fourteenth Amendments.
Id.; Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006). In deciding whether
particular conduct is “inherently expressive,” courts look to whether the conduct shows “an intent
to convey a particular message” and whether “the likelihood was great that the message would be
understood by those who viewed it.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 388 (5th Cir.
2013) (quoting Johnson, 491 U.S. at 404).
Citing Lichenstein v. Hargett, 489 F. Supp. 3d 742 (M.D. Tenn. 2020), defendants argue
that in mailing application packets and distributing personalized ballot applications, plaintiffs are
not engaging in speech or expressive conduct. Defendants’ Memorandum In Support Of Motion
To Dismiss (Doc. #27) at 16–17.
Lichtenstein involved First Amendment challenges to a
Tennessee statute which prohibited anyone except election officials from providing applications
for absentee ballots. 489 F. Supp. 3d at 748. The district court held that the law did not prohibit
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spoken or written expression, and therefore did not restrict expressive conduct. Id. at 773.
Plaintiffs correctly respond that Lichtenstein is not germane because their application packets
include speech that communicates a pro-mail voting message.
Furthermore, mailing the
application packets is inherently expressive conduct that the First Amendment embraces. See
League of Women Voters of Fla. v. Cobb, 447 F. Supp. 2d 1314 (S.D. Fla. 2006); see also
Democracy N.C. v. N.C. State Bd. of Elections, 476 F. Supp. 3d 158 (M.D. N.C. 2020); Priorities
USA v. Nessel, 462 F. Supp. 3d 792 (E.D. Mich. 2020).
Accepting their factual allegations as true, plaintiffs have sufficiently alleged that HB 2332
violates their First Amendment rights to engage in free speech and expressive conduct. In other
words, defendants are not entitled to dismissal of Count 1 on the theory that HB 2332 exclusively
regulates conduct, not speech.
First Amendment Freedom Of Association Claim (Count 2)
Count 2 alleges that the Ballot Application Restrictions chill plaintiffs’ associational rights
under the First Amendment because they impede plaintiffs’ ability to engage and broaden their
network and association base for political change. Complaint (Doc. #1), ¶¶ 51, 60, 98–99; see also
supra Section I.C.1. Defendants do not dispute that the restrictions hinder plaintiffs’ right to
associate but argue that as a matter of law, the State may do so in exercising its constitutional
authority to regulate elections. Defendants’ Memorandum In Support Of Motion To Dismiss
(Doc. #27) at 18.
The right to associate to advance beliefs and ideas is at the heart of the First Amendment.
NAACP v. Button, 371 U.S. 415, 430 (1963). An organization’s attempt to broaden the base of
public participation in and support for its activities is conduct “undeniably central to the exercise
of the right of association.” Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d
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1183, 1202 (D.N.M. 2010), on reconsideration in part, No. CIV-08-0702 JB/WDS, 2010 WL
3834049 (D.N.M. July 28, 2010) (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208,
214–15 (1986)). The “freedom to engage in association for the advancement of beliefs and ideas
is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 460 (1958); see Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973).
The freedom of association encompasses not only the right to associate with others but also
the right to choose how one associates with others. See Boy Scouts of Am. v. Dale, 530 U.S. 640,
653 (2000) (“As we give deference to an association’s assertions regarding the nature of its
expression, we must also give deference to an association’s view of what would impair its
expression.”). Public endeavors which “assist people with voter registration are intended to
convey a message that voting is important,” and which expend resources “to broaden the electorate
to include allegedly under-served communities,” qualify as expressive conduct which implicates
the First Amendment freedom of association. Democracy N.C., 476 F. Supp. 3d at 223 (quoting
Am. Ass’n of People with Disabilities, 690 F. Supp. 2d at 1215–16).
Here, plaintiffs allege that the Out-of-State Distributor Ban prevents them from “recruiting,
consulting, and otherwise associating with Kansas organizations that distribute [advance mail
voting] applications.” Complaint (Doc. #1), ¶¶ 60, 98. Working with these Kansas organizations
allows them to increase the number of voices which share the message that voters are entitled to
and should participate in the democratic process. Id., ¶¶ 6, 10, 20. Plaintiffs allege that the
Personalized Application Prohibition interferes with their associational rights by prohibiting them
from working with Kansas organizations to provide the Absentee and Mail Voting tool and limits
their ability to “associate for the purposes of assisting persons” in requesting an application for an
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advance ballot. Id., ¶¶ 99–100.
Defendants have a legitimate interest in regulating elections. Utah Republican Party v.
Cox, 892 F.3d 1066, 1084 (10th Cir. 2018); see Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 191 (2008) (describing state interest generally as interest in “protecting the integrity and
reliability of the electoral process”); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364
(1997) (“States certainly have an interest in protecting the integrity, fairness, and efficiency of
their ballots and election processes.”). Defendants, however, do not contest that plaintiffs have an
associational interest in engaging with Kansas residents about advance mail voting. Defendants’
Memorandum In Support Of Motion To Dismiss (Doc. #27) at 18.
In Am. Ass’n of People with Disabilities v. Herrera, supra, nonprofit organizations engaged
in voter-registration activities challenged a New Mexico law that allegedly burdened their right to
expressive association. 690 F. Supp. 2d at 1190. Like defendants here, defendants in that case
conceded that the statute restricted plaintiffs’ ability to associate, but argued that the burdens
imposed by the challenged laws were non-existent when weighed against the State’s substantial
interest in regulating elections. Id. at 1220. On a motion to dismiss, however, the district court
properly refused to weigh the relative burdens of the restrictions. Id.
Accepting plaintiffs’ allegations as true—as the Court must do in addressing a motion to
dismiss—plaintiffs in this case have sufficiently alleged that HB 2332 violates their First
Amendment rights to engage in free association. Defendants are not entitled to dismissal of
Count 2 on the theory that HB 2332 only minimally burdens plaintiffs’ right to associate, because
on this record the Court cannot weigh the relative burdens of plaintiffs’ First Amendment rights
against the State’s professed interest in regulating elections. Therefore the Court overrules
defendants’ motion to dismiss Count 2.
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3. Overbreadth Claim (Count 3)
Count 3 alleges that the Ballot Application Restrictions are unconstitutionally overbroad,
in violation of the First Amendment, because they “needlessly regulate a substantial amount of
constitutionally protected expression and associations,” and “impermissibly chill [p]laintiffs’
protected speech.” Complaint (Doc. #1), ¶¶ 106–08. Plaintiffs bring both as-applied and facial
overbreadth challenges. Plaintiffs argue that as applied to them, the restrictions are overbroad
because (1) HB 2332 reaches a substantial amount of constitutionally protected activity in
delivering their pro-mail voting message; (2) they cannot financially partner with other
organizations to encourage Kansas voters to vote by mail; and (3) the threat of criminal and civil
penalties impermissibly chills their speech. Id., ¶¶ 52–54, 59, 65, 109. For largely the same
reasons, plaintiffs also raise a facial attack that HB 2332 necessarily chills the speech of others not
before the Court. Id., ¶¶ 52, 73, 93, 108. Plaintiffs argue that HB 2332 reaches a substantial
amount of constitutionally protected expression and exceeds any legitimate state interest in
avoiding fraud, minimizing voter confusion and facilitating an orderly administration of the
electoral process, and that they sufficiently state a claim under Rule 12(b)(6).
Defendants seek dismissal on the theory that as a matter of law, because plaintiffs may
communicate their messages in other ways, the restrictions do not substantially impair their
constitutional activity, as required to state a valid overbreadth claim. Defendants’ Memorandum
In Support Of Motion To Dismiss (Doc. #27) at 25.
Facial challenges and as-applied challenges can overlap conceptually. See Doe v. Reed,
561 U.S. 186, 194 (2010). Where the “claim and the relief that would follow . . . reach beyond the
particular circumstances of the plaintiffs,” “they must satisfy th[e] standards for a facial
challenge to the extent of that reach.” Id. Therefore, to determine whether plaintiffs have stated
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a valid claim upon which relief may be granted, the Court analyzes their claims under the
heightened facial challenge standard. Id.; see United States v. Stevens, 559 U.S. 460, 472–73
In general, to succeed in a typical facial attack, plaintiffs must establish that “no set of
circumstances exists [in] which [the statute] would be valid, or that the statute lacks any plainly
legitimate sweep.” Stevens, 559 U.S. at 473 (citations omitted). Generally, facial challenges are
strongly disfavored, but overbreadth challenges under the First Amendment are an exception to
that rule because the “statute’s very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973); see Virginia v. Hicks, 539 U.S. 113, 118 (2003) (First Amendment overbreadth doctrine
exception to normal rule for facial challenges). The Supreme Court has cautioned, however, that
the concept of substantial overbreadth is not readily reduced to an exact definition. Members of
the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).
A court should address an overbreadth challenge when the law may chill the free speech
rights of parties not before the court, especially when the statute imposes criminal sanctions. West
v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1367 (10th Cir. 2000); see also Hicks, 539
U.S. at 118–20. To succeed on an overbreadth challenge, plaintiffs must show that the “potential
chilling effect on protected expression is both real and substantial.” United States v. Brune, 767
F.3d 1009, 1018 (10th Cir. 2014) (quoting Jordan v. Pugh, 425 F.3d 820, 828 (10th Cir. 2005)).
At the motion to dismiss stage, the Court need not determine whether the illegitimate applications
of the statute substantially outweigh the legitimate applications of the statute. Animal Legal Def.
Fund v. Reynolds, No. 419CV00124JEGHCA, 2019 WL 8301668, at *12 (S.D. Iowa Dec. 2,
2019). At this stage of the litigation, plaintiffs need only allege “a claim to relief that is plausible
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on its face,” describing instances of arguable overbreadth of HB 2332. Twombly, 550 U.S. at 570;
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008).
Substantial Impairment Of Plaintiffs’ Constitutionally Protected Rights
As noted above, plaintiffs allege that the Out-of-State Distributor Ban reaches a substantial
amount of their constitutionally protected activity in delivering their pro-mail voting messages.
HB 2332 bars plaintiffs from mailing application packets that contain applications for advance
mail ballots to Kansas voters and also prohibits them from even “causing” such applications to be
mailed. Complaint (Doc. #1), ¶¶ 52, 59, 109; HB 2332, § 3(l)(1). HB 2332 also prevents plaintiffs
from extending financial support and encouragement to partner organizations who work to mail
applications to Kansas voters or Kansas residents who mail applications to Kansas-based families.
Complaint (Doc. #1), ¶¶ 52, 60. Under the Personalized Application Prohibition, plaintiffs cannot
distribute applications for advance ballots which contain personalized information from the State’s
voter database or the voter himself. Id., ¶¶ 29, 45. Plaintiffs allege that the penalties associated
with both restrictions will chill their speech and associational rights, as they will be deterred from
engaging in constitutionally protected speech.
Substantial Impairment Of Rights Of Other Parties
Plaintiffs allege that HB 2332 substantially impairs and chills not only their speech, but the
speech of others not before the Court. Specifically, plaintiffs allege that it will prevent out-of-state
organizations from extending financial support and encouragement to Kansas partner
organizations and residents who mail advance ballot applications to Kansas voters, and
substantially impair the ability of Kansas-based organizations to advocate for voting by mail.
Plaintiffs allege that HB 2332 authorizes penalties which, when applied to all out-of-state entities,
will deprive society of an “uninhibited marketplace of ideas.” Taxpayers for Vincent, 466 U.S.
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 18 of 46
at 800, n.19.
As noted, the Court has determined that plaintiffs asserted a plausible claim that HB 2332
implicates protected speech. Defendants counter that plaintiffs’ examples are “hypothetical
scenarios” and argue that the statute has several legitimate applications; plaintiffs, however, allege
more than a single “discrete application of the statute that may be problematic.” Free Speech
Coal., Inc. v. Holder, 729 F. Supp. 2d 691, 733 (E.D. Pa. 2010), aff’d in part, vacated in part,
remanded sub nom. Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d 519 (3d Cir. 2012).
Weighing The Legitimate State Interests
For a statute to be overly broad, the overbreadth must not only be real, but substantial,
judged in relation to the statute’s plainly legitimate sweep. New York v. Ferber, 458 U.S. 747,
771 (1982). Defendants put forward three alleged interests in enacting HB 2332: avoiding fraud,
minimizing voter confusion and facilitating an orderly administration of the electoral process. On
a motion to dismiss, the Court does not determine whether potentially illegitimate applications
substantially outweigh any legitimate applications of the statute. 4 Reynolds, 2019 WL 8301668,
at *12. To state a plausible claim, plaintiffs need only allege a meaningful number of illegitimate
applications. Id.; see also People for Ethical Treatment of Animals v. Hinckley, 526 F. Supp. 3d
218, 239 (S.D. Tex. 2021).
HB 2332 has clearly legitimate purposes: eliminating voter fraud, preventing voter
confusion and preserving limited resources to maintain orderly administration of the electoral
process. Plaintiffs, however, raise significant issues whether protected expression will fall prey to
The Court recognizes that on a motion for summary judgment or at trial, it would
consider evidence on the statute’s limiting construction when determining what constitutes an
illegitimate application of the statute. See West v. Derby Unified School Dist. No. 260, 23 F.
Supp. 2d 1223, 1234 (D. Kan. 1998), aff’d, 206 F.3d 1358 (10th Cir. 2000).
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the statute. See Ferber, 458 U.S. at 773. Accepting plaintiffs’ allegations as true, they allege a
“realistic chilling effect” on their First Amendment rights and those not before the Court. See
Faustin v. City and Cnty. Of Denver, Colo., 423 F.3d 1192, 1199–1200 (10th Cir. 2005); see also
West, 206 F.3d at 1367. Plaintiffs plausibly allege that the First Amendment protects their promail voting advocacy speech, and that HB 2332 prohibits the exercise of their First Amendment
rights. Plaintiffs are not “brainstorming hypotheticals.” See Nat’l Press Photographers Ass’n v.
McCraw, 504 F. Supp. 3d 568, 586–87 (W.D. Tex. 2020).
Defendants are not entitled to dismissal of Count 3 on the ground that as a matter of law,
HB 2332 does not substantially impair constitutional activities and is not overbroad.
4. Dormant Commerce Clause Claim (Count 4)
Plaintiffs allege that because HB 2332 restricts non-Kansas residents from mailing advance
voting applications to Kansas residents, it violates the Dormant Commerce Clause by
discriminating against and unjustifiably burdening interstate commerce. U.S. Const. art. I, § 8,
cl.3; Complaint (Doc. #1), ¶¶ 115, 118; Plaintiffs’ Memorandum Of Law In Opposition To
Defendants’ Motion To Dismiss (Doc. #31) filed July 30, 2021 at 25–26. Defendants argue that
plaintiffs have not stated an actionable claim because the State has legitimate purposes of
eliminating potential voter fraud, minimizing voter confusion and preserving limited resources,
and that the State’s right to regulate elections is beyond the reach of the Dormant Commerce
Clause. Defendants’ Memorandum In Support Of Motion To Dismiss (Doc. #27) at 27–28;
Defendants’ Reply To Plaintiffs’ Memorandum Of Law In Opposition To Defendants’ Motion To
Dismiss (Doc. #41) filed August 20, 2021 at 24. Defendants also argue that the State is exempt
from the Dormant Commerce Clause because it is a market participant.
Plaintiffs respond that a statute which mandates differential treatment of in-state and out-
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of-state entities is per se invalid under the Dormant Commerce Clause; that the State’s right to
regulate elections is not exempt from scrutiny under the Dormant Commerce Clause; and that the
State cannot show that nondiscriminatory alternatives would be insufficient to protect its alleged
The Commerce Clause provides that “Congress shall have Power . . . [t]o regulate
Commerce with foreign Nations and among the several States.” U.S. Const. art. I, § 8, cl. 3. While
the Commerce Clause is more frequently invoked as authority for federal legislation, the so-called
Dormant Commerce Clause limits state legislation which adversely effects interstate commerce.
See Hughes v. Oklahoma, 441 U.S. 322, 326 (1979). The focus of a Dormant Commerce Clause
challenge is whether a state law improperly interferes with interstate commerce. Direct Mktg.
Ass’n v. Brohl, 814 F.3d 1129, 1135 (10th Cir. 2016); see W. Lynn Creamery, Inc. v. Healy, 512
U.S. 186, 192 (1994) (“Th[e] negative aspect of the Commerce Clause prohibits economic
protectionism—that is, regulatory measures designed to benefit in-state economic interests by
burdening out-of-state competitors”) (internal citations omitted).
Under the Dormant Commerce Clause, the Court must first analyze whether the statute
“regulates evenhandedly with only ‘incidental’ effects on interstate commerce or discriminates
against interstate commerce.” Or. Waste Sys., Inc. v. Dept. of Env’t Quality of Or., 511 U.S. 93,
99 (1994) (quoting Hughes, 441 U.S. at 336). Discrimination means differential treatment of instate and out-of-state economic interests that benefits the former and burdens the latter. Id. If a
restriction on commerce is discriminatory, it is virtually per se invalid. Id. (citing Chem. Waste
Mgmt., Inc. v. Hunt, 504 U.S. 334, 344 n.6 (1992)). A state regulation that discriminates against
interstate commerce will survive constitutional challenge only if the state shows “it advances a
legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory
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alternatives.” Direct Mktg. Ass’n, 814 F.3d at 1136 (citing Camps Newfound/Owatonna, Inc. v.
Town of Harrison, 520 U.S. 564, 581 (1997)).
Defendants do not deny that plaintiffs are engaged in interstate commerce or that HB 2332
restricts non-Kansas residents from mailing advance voting applications to Kansans.5 Defendants’
Memorandum In Support Of Motion To Dismiss (Doc. #27) at 27. On this record, HB 2332 is not
an even-handed regulation which only incidentally discriminates against non-residents such as
plaintiffs. Accordingly, to survive constitutional challenge, defendants must show that HB 2332
advances legitimate local purposes that cannot be adequately served by reasonable,
nondiscriminatory alternatives. In attempting to do so, defendants cite three goals of HB 2332: to
“minimize voter confusion, eliminate potential voter fraud, and preserve limited resources from
being expended on rectifying problems flowing from the same, including having to wade through
duplicative advance mail voting applications.” Id. at 27–28. Defendants argue that HB 2332
“limits the amount of advance mail voting applications a voter receives” and ensures the State’s
ability to verify the accuracy of the sender’s disclosures through Kansas records. Id. at 28. Lastly,
defendants argue that the goal of the Out-of-State Distributor Ban is not economic protectionism,
and in fact, defendants would prefer that no third-party organizations be allowed to distribute
advance voting applications. Id. at 29. Plaintiffs respond that the State’s “legitimate interests” do
not justify discrimination against non-residents because the restrictions (1) do not combat voter
Defendants attempt to argue that under the Elections Clause, Article I, Section 4,
Clause 1 of the Constitution, States may prescribe the “Times, Places, and Manner of holding
Elections,” and that this authority forecloses plaintiffs’ cause of action. Defendants raise this
argument for the first time in their reply brief, Defendants’ Reply To Plaintiffs’ Memorandum Of
Law In Opposition To Defendants’ Motion To Dismiss (Doc. #41) at 24 and therefore the Court
does not consider it. See United States v. Gurule, 461 F.3d 1238, 1248 (10th Cir. 2006) (courts
generally do not consider arguments raised for the first time in reply brief); see also Novosteel SA
v. U.S., Bethlehem Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002) (reply brief does not provide
moving party new opportunity to present yet another issue for court consideration).
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confusion or fraud, or preserve resources; (2) the Ban does not limit the number of advance voting
applications a Kansas voter may receive; (3) voters may still receive and submit duplicate
applications; and (4) defendants have no evidence that out-of-state distributors as a class behave
differently from in-state distributors.
Plaintiffs’ Memorandum Of Law In Opposition To
Defendants’ Motion To Dismiss (Doc. #31) at 27–28. Defendants do not persuasively refute these
points or establish why their legitimate local objectives could not be achieved by reasonable,
Plaintiffs sufficiently allege that the Out-of-State Distributor Ban is per se illegal, as it
prevents out-of-state, but not in-state, residents from mailing advance ballot applications.
Accepting plaintiffs’ allegations and giving them the benefit of all favorable inferences, they
sufficiently plead that the State’s legitimate interests in regulating elections do not justify the
As noted, defendants also argue that the Dormant Commerce Clause does not apply to the
State because it is a market participant. This exception “covers States that go beyond regulation
and themselves participate in the market so as to exercise the right to favor their own citizens over
others.” Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 339 (2008) (internal citations omitted).
This exception reflects “a basic distinction between States as market participants and States as
market regulators.” Id. (internal citations omitted). In arguing that the state is a market participant,
defendants go beyond the allegations of the complaint. See GFF Corp. v. Associated Wholesale
Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (court must exclude outside material unless
motion converted to one for summary judgment under Rule 56). The Court does not consider this
argument in deciding defendants’ motion to dismiss.
Defendants are also not entitled to dismissal of Count 4 on the theory that as a matter of
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law the State has legitimate interests which cannot be served by reasonable, nondiscriminatory
alternatives. On a motion to dismiss, the Court confines its inquiry to the allegations of plaintiffs’
complaint and cannot evaluate the sufficiency or weight of interests which defendants invoke to
defeat those allegations. Therefore, the Court overrules defendants’ motion to dismiss Count 4.
Plaintiffs seek to preliminarily enjoin enforcement of HB 2332 because (1) they are
substantially likely to succeed on the merit of their claims that the Ballot Application Restrictions
violate the First Amendment and/or the Dormant Commerce Clause; (2) violation of First
Amendment rights constitutes irreparable harm; (3) the injunction would not inflict substantial
harm on defendants because HB 2332 does not serve important state interests; and (4) an injunction
would further the public interest. Plaintiffs’ Memorandum Of Law In Support Of Motion For
Preliminary Injunction (Doc. #25) filed July 8, 2021 at 2–4.
Defendants oppose plaintiffs’ motion. Defendants assert that plaintiffs’ motion is flawed
because (1) plaintiffs’ claims have no substantive legal merit; (2) the State’s regulatory interests
outweigh any minor impact on the rights of plaintiffs and voters whom they represent; (3) plaintiffs
have shown no risk of imminent harm to democracy; and (4) a preliminary injunction is not
necessary because HB 2332 will not take effect until January 1, 2022 and advance ballot
applications for the primaries in 2022 cannot be accepted until April 1, 2022. Defendants’
Response To Plaintiffs’ Motion For A Preliminary Injunction (Doc. #29) filed July 22, 2021 at 2–
3; HB 2332, § 3, 11.
The purpose of a preliminary injunction is “to preserve the status quo pending the outcome
of the case.” Tri-State Generation & Transmission Ass’n Inc. v. Shoshone River Power Inc., 805
F.2d 351, 355 (10th Cir. 1986). A preliminary injunction is a drastic and extraordinary remedy,
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and courts do not grant it as a matter of right. Paul’s Beauty Coll. v. United States, 885 F. Supp.
1468, 1471 (D. Kan. 1995); see Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 (10th Cir.
2006) (preliminary injunction is extraordinary remedy, and right to relief must be clear and
unequivocal). To obtain a preliminary injunction, plaintiffs must establish (1) a substantial
likelihood that they will eventually prevail on the merits; (2) irreparable injury unless a preliminary
injunction issues; (3) that the threatened injury outweighs whatever damage the proposed
preliminary injunction may cause to defendants; and (4) that, if issued, a preliminary injunction,
will not be contrary to the public interest. Tri-State Generation, 805 F.2d at 355. If the moving
parties demonstrate that the second, third and fourth factors “tip strongly” in their favor, the test is
modified and the moving parties “may meet the requirement for showing success on the merits by
showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to
make the issue for litigation and deserving of more deliberate investigation.” Okla. ex rel. Okla.
Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006).
A. Findings Of Fact
As noted, the Court conducted an evidentiary hearing on September 8, 2021. As witnesses,
plaintiffs called Daniel McCarthy, Vice President of Finance and Operations for VoteAmerica and
Thomas Lopach, President and Chief Executive Officer for VPC. Defendants called Bryan
Caskey, Kansas Director of Elections; Andrew Howell, Shawnee County Elections Commissioner;
and Connie Schmidt, retired Johnson County Elections Commissioner. Based on the evidence
received at that hearing, the Court makes the following findings of fact:
Plaintiffs are out-of-state, nonpartisan organizations whose mission is to persuade citizens
to engage with the political process, with a focus on advance mail voting.
VoteAmerica’s mission is to “see an electorate where all voters are informed and
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participate time after time in our elections.” It specifically seeks to engage low propensity voters
who are usually “neglected by partisan efforts and partisan turnout.” Transcript Of Preliminary
Injunction Motion Hearing Before The Honorable Kathryn H. Vratil, United States Senior District
Judge (Doc. #45) filed September 14, 2021 at 7–8. VoteAmerica provides a range of services to
potential voters, including a database of election laws for each state, municipality and county;
voter registration verification; mail-in ballot request tools; and election reminders. Id. at 8–9.
These services require VoteAmerica to work directly with secretaries of state and local election
officials and administrators. Id. at 23.
VoteAmerica offers a vote by mail service, which allows citizens to go to its web site and
fill out advance mail ballot request forms which contain their personal information (name, address,
driver’s license, etc.). Id. at 9. VoteAmerica then prints and mails the ballot request form to the
voter. Id. VoteAmerica’s goal is to encourage safe voting, especially for populations who may be
disabled, who lack the technology to print and mail a ballot request form or who need to work on
election day, and thus expand participation in the electoral process. Id. By November of 2021,
VoteAmerica plans to fully develop the Kansas tool for advance mail voting services. Id. at 10,
12. Its goal is to offer the tool for the 2022 election cycle, as it has done in other states. Id. at 10,
12. To be successful, the mail ballot request tool requires significant planning and financial
expense. Id. at 10–12. Other web sites with similar voting missions may embed VoteAmerica’s
tool on their platforms. Id. at 12. Such partnerships align with VoteAmerica’s mission because
as more voices share the pro-mail voting message, voters are more likely to listen. Id. at 12–13.
When voters request advance mail voting application packets, they receive personalized
absentee ballot forms; blank absentee ballot forms; instruction forms that are personalized with
local election office information; pro-voting messages such as “Your vote matters. Get this in on
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time;” and a free hotline number for nonpartisan advice. Id. at 13–16. VoteAmerica includes a
blank absentee form so a voter can correct any errors in the personalized information or give the
blank application to another voter. Id. at 17–18. VoteAmerica includes an envelope addressed to
the local election office with pre-paid postage. Id. at 18. The personalized ballot application
reduces the voter’s burden in accessing the right to vote and increases the likelihood that the voter
will submit the ballot application.
Id. at 16–17. Mr. McCarthy believes that without the
personalized ballot application, VoteAmerica will have lower response rates, especially among
low-income and low-resource voters, and that its mission will suffer.6 Id. at 20. The entire packet
is vital to VoteAmerica’s mission and serves to communicate and persuade voters to participate in
the electoral process. Id. at 28.
VoteAmerica plans to offer vote by mail services to Kansans in the 2022 election cycle.
Though it did not offer the personalized request tool in 2020, about 7,700 Kansans requested
advance voting application packets from VoteAmerica. Id. at 22. According to Mr. McCarthy,
the Out-of-State Distributor Ban would end VoteAmerica’s efforts in Kansas, as it could cost
around $100,000 to become a resident of Kansas. Id. at 19. The ban on personalized ballot
applications would detract from VoteAmerica’s mission, as it would become more complicated
for low-income, low-resource voters to access ballot applications. Id. at 20. The ban would also
create coding issues, as VoteAmerica would need to hire an engineer to create a specific exception
on its web site for Kansas residents. Id. Mr. McCarthy testified that overall, the most significant
issue would be the isolation of Kansas residents; they would “always [have] an asterisk,” lowering
the potential impact of its communications. Id. at 21, 27.
VoteAmerica monitors response rates by tracking “voter files” during an election
cycle to see whether voters have returned their ballot applications to their local election offices.
Transcript Of Preliminary Injunction Motion Hearing (Doc. #45) at 29.
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Like VoteAmerica, VPC’s mission is to engage low propensity voting groups (people of
color, unmarried women and young people) at levels equal to their actual representation in the
Id. at 39.
VPC uses direct mail and digital means to achieve this mission.
Ninety per cent of VPC’s work is focused on direct mail programs, “bring[ing] democracy to
people’s doors.” Id. at 40. In 2020, because that election cycle drastically increased VPC’s digital
footprint, VPC also partnered with a non-profit organization called the Center for Voter
Information. Id. at 42. Moving forward, VPC plans to operate separately from the Center for
Voter Information. Id.
VPC mailers include a cover letter which explains and encourages voting by mail; reminds
the voter to submit only one ballot application request; identifies a web site to check the status of
an application; includes a personalized ballot application obtained on a form from the Kansas
Secretary of State; and includes a photocopy of a pre-paid return envelope to the election office.
Id. at 42–45. To ensure the accuracy of the personalized information, VPC communicates with
both the Kansas Secretary of State and the county election administrators. Id. at 47–48; Plaintiffs’
Exhibits In Support Of Their Motion For Preliminary Injunction (Doc. #43-2 Exhibit 6 Emails).
Mr. Lopach testified that these communications involve (1) checking to make sure VPC has used
the proper forms and (2) letting election offices know how many forms VPC plans to mail to each
county. Transcript Of Preliminary Injunction Motion Hearing (Doc. #45) at 52, 76–78. At the
suggestion of election administrators from various states, VPC added the reminder to submit only
one ballot application. Id. at 42.
Like Mr. McCarthy, Mr. Lopach testified that response rates significantly increase with the
inclusion of personalized ballot applications and pre-paid postage mailers. Id. at 45–46. Many
voters do not own printers or may not be able to access the internet, and in mailing their application
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packets, such voters rely heavily on VPC resources. Id. at 50. VPC highlights each personalized
ballot application to draw a voter’s attention to (1) providing additional information where
necessary, (2) verifying that personalized information is accurate and (3) the importance of
submitting only one ballot application. Id. at 50, 57. By keeping up-to-date internal records on
who has requested ballot applications, VPC tries to prevent voters from sending multiple ballot
applications. Id. at 48.
For the 2022 election cycle, VPC plans to send voter registration mailings to roughly
70,000 Kansans, communicating with these voters every three to four months before the November
election. Id. at 49. In 2020, VPC sent 371 million pieces of mail nationwide (voter registration
applications, vote by mail applications and election day information pamphlets). Id. at 58. In
2022, these communications will include reminders to vote and information necessary to make an
informed decision about voting in person on election day or in advance by mail. Id. at 49.
Mr. Lopach testified that HB 2332 will inhibit VPC’s ability to effectively engage with Kansans.
Id. It will prevent VPC from mailing personalized ballot applications, thus reducing response rates
and increasing the potential number of errors. Id. at 49, 60. The ban on out-of-state distributors
will likely limit all of VPC’s mail programs in Kansas, because VPC is not a Kansas resident and
it cannot afford to become one. Id. at 49–50, 61.
Since February of 2015, Mr. Caskey has been responsible for overseeing Kansas elections
at the national and state levels and for assisting 105 county election offices at the local level. Id.
at 62–63. He has been in the state election office since February of 1998. Id. at 63. Mr. Caskey
testified that since 1996, any Kansas voter may vote before election day for any reason, either by
mail or in person. Id. “Unlike many states which struggle to implement mail balloting for the first
time, Kansas . . . has 25 years of experience with mail ballots.” Id. at 84. To vote by mail, a voter
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must complete an advance mail ballot application, which is available on line, in person, by mail or
by email. Id. at 63–64. The process in each county is a little different. Id. at 64. Before 2020, a
handful of counties sent advance mail voting applications to all registered voters. Id. In 2020,
approximately 50 per cent of counties did so. Id.
In the primary election cycle in 2020, Mr. Caskey’s office received twice as many phone
calls compared to the 2016 election from all parts of the State. Id. at 66–68. Voters submitted
three times as many advance ballot applications, compared to 2016, and more than 90 per cent of
those voters submitted ballots. Id. at 75, 85. The added phone calls increased his office’s
workload. Id. at 67. The phone calls did not pertain to novel questions, but remained “consistent
with previous elections.” The only new questions had to do with COVID-19. Id. at 68. According
to Mr. Caskey, the 2020 elections “were successful and . . . were conducted according to Kansas
law, and . . . voters were allowed to vote privately, securely, accurately and had their vote counted
for who they intended to vote for.” Id. at 81–82; Plaintiffs’ Exhibits In Support Of Their Motion
For Preliminary Injunction (Doc. #43-2 Exhibit 7 11.16.20 Letter from Sec. of State).
Mr. Caskey testified that duplicate advance ballot applications impact the integrity of the
election process because they take more time. Transcript Of Preliminary Injunction Motion
Hearing (Doc. #45) at 69. He testified that while it typically takes one to three minutes to process
an initial ballot application, a duplicate application “dramatically” increases the amount of time
needed. Id. The Election Voter Information System (“ELVIS”) tracks registered voters in Kansas
in real time. Id. at 71. Outside organizations may request this information from Mr. Caskey’s
office. Id. As it gets closer to the election, however, more requests come in and it takes more time
to update ELVIS. Id. at 72.
Mr. Caskey testified that his office will work with the “appropriate stakeholders” to
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determine what regulations under HB 2332 will look like. Id. at 74. The goal is for regulations to
take effect before the primary election in August of 2022, which will require at least three or four
months of processing time. Id.
Mr. Howell, Shawnee County Elections Commissioner, testified that before 2020,
Shawnee County did not proactively mail advance ballot applications to all registered voters, but
voters could use the election web site to retrieve applications. Id. at 89. In 2020, Shawnee County
proactively mailed a blank application to each registered voter. Id. at 90. Because ELVIS updated
the voter database every day, Shawnee County did not pre-populate the ballot application forms
with personalized information. Id. at 92.
In 2020, Shawnee County received 24,699 advance mail ballot applications, of which 2,955
were duplicates. Shawnee County had a budget overrun of $400,000 for the 2020 election, with
around $20,000 due to duplicate ballot applications. Id. at 96. Every ballot application is tracked
against ELVIS to ensure that no voter receives more than one mail ballot. If ELVIS indicates that
a voter may be submitting a duplicate ballot application, a local election official must verify that
the name, address and signature match the voter record on file and check identifying information,
such as driver’s license number and date of birth. Id. at 96–97. If the ballot application is not a
duplicate, the official must process the application and mail a ballot to the voter within 48 hours.
Id. at 104. A voter often has legitimate reasons to submit more than one ballot application, such
as changes in personal information or mailing addresses. Id. at 102. If the ballot application is a
true duplicate, the election official engages what is called a “cure process.” Id. at 98. The first
stage of the cure process is to contact the voter, either by email, mail or phone call, to make certain
“that we know who the person is, we know who we’re sending it to, and that it’s handled correctly.”
Id. at 98–99. This process may take anywhere from five to ten minutes on average but may take
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up to 30 minutes if it is not easily resolved. Id. at 99. The cure process is not just limited to
duplicate ballot applications; some applications enter the process because the application is
missing information, a voter forgot to sign the application, a voter failed to include a driver’s
license number or other reasons. Id. at 102. In 2020, the Shawnee County election office hired
25 to 30 people to handle cure processes and process applications within the required 48 hours.
Id. at 100–01. Mr. Howell’s office did not anticipate receiving as many mail ballot applications
as it did. Id. at 101.
Ms. Schmidt served as the Johnson County Election Commissioner for 11 years, first from
1995 to 2005 and then again in 2020. Id. at 111. In 2020, Johnson County mailed more than
165,000 mail ballot applications and processed a little more than 200,000 applications. Id. at 112.
Before 2020, Johnson County did not proactively send out actual advance mail voting applications
to all registered voters. In 2020, it changed its policy. Id. at 113. In 2020, Johnson County
received well more than three times as many ballot applications, compared to typical presidential
election years. Id. at 112–13. Before 2020, Johnson County received some duplicate ballot
applications, but not as many as it did in 2020. Id. at 113. The processing time for each duplicate
application ranged from five to ten minutes. Id. at 114. After the 2020 election, Ms. Schmidt
tweeted that the Kansas general election was both “historic and successful.” Id. at 118.
B. Likelihood Of Success On The Merits
Plaintiffs contend that they are likely to succeed on the merits of their constitutional claims
that HB 2332 violates their rights under the First and Fourteenth Amendments and the Dormant
Commerce Clause. Plaintiffs’ Memorandum Of Law In Support Of Motion For Preliminary
Injunction (Doc. #25) at 11, 22; see also supra Section I.C.1–4. Defendants argue that plaintiffs
are unlikely to succeed on the merits because their activities do not involve speech under the First
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Amendment (let alone core political speech), and the restrictions do not contravene the Dormant
Defendants also argue that even if the restrictions implicate the First
Amendment, they must be reviewed under the Anderson-Burdick test, Anderson-Celebrezze, 460
U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992), and that because HB 2332 imposes
“reasonable, neutral, non-discriminatory prophylactic measures,” plaintiffs will not be entitled to
relief. Defendants’ Response To Plaintiffs’ Motion For A Preliminary Injunction (Doc. #29)
As noted above, plaintiffs sufficiently allege that HB 2332 violates their rights to engage
in protected speech and expressive conduct under the First Amendment. The Court therefore
addresses the likelihood that plaintiffs will eventually prevail on those claims.
1. What Level Of Scrutiny Is Warranted?
To determine the likelihood of plaintiffs’ eventual success on the merits, the Court must
determine which level of scrutiny applies: strict scrutiny or the Anderson-Burdick balancing test.
See Chandler v. City of Arvada, Colo., 292 F.3d 1236, 1241 (10th Cir. 2002); Citizens for
Responsible Gov’t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1196 (10th Cir. 2000).
Federal courts often disagree on what level of scrutiny applies to state election and voter
registration laws. Plaintiffs argue that the Ballot Application Restrictions are subject to strict or
“exacting scrutiny” because they restrict plaintiffs’ ability to engage in core political speech.7
Defendants argue that because the restrictions do not target speech, the Court should analyze them
under the more flexible Anderson-Burdick balancing test. Defendants’ Response To Plaintiffs’
Specifically, plaintiffs argue that strict scrutiny applies because HB 2332
(1) abridges their core political speech, (2) limits their speech based on content, viewpoint and
speaker identity and (3) curbs the overall quantum of speech available to the election or voting
process. Complaint (Doc. #1), ¶¶ 60–61, 69–72, 80–82, 88–89.
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 33 of 46
Motion For A Preliminary Injunction (Doc. #29) at 13; see Anderson, 460 U.S. at 789; Burdick,
504 U.S. at 433–34.
Although voting is of the “most fundamental significance under our constitutional
structure,” the right to vote in any manner and the right to associate for political purposes through
the ballot is not absolute. Utah Republican Party, 892 F.3d at 1076–77 (quoting Burdick, 504 U.S.
at 433). The Constitution grants states the authority to regulate the “Times, Places, and Manner”
of elections. Id. at 1076 (citing Tashjian, 479 U.S. at 217); U.S. Const. art. 1, § 4, cl.1. When a
state invokes its constitutional authority to regulate elections, an individual’s right to vote and
associate with others may be affected. Anderson, 460 U.S. at 788; see Timmons, 520 U.S. at 358
(“States may, and inevitably must, enact reasonable regulations of parties, elections and ballots to
reduce election- and campaign-related disorder”). An example of permissible regulation is a
decision to close the polls at 7:00 pm instead of 8:00 pm. Utah Republican Party, 892 F.3d at
1077. In evaluating the validity of a state election regulation under Anderson-Burdick, a Court
applies a flexible standard, “weigh[ing] the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments” against the precise interests which the
State advances to justify the burden imposed by its rule, taking into consideration the extent to
which those interests make it necessary to burden plaintiffs’ rights. Fish v. Schwab, 957 F.3d
1105, 1122 (10th Cir. 2020) (citing Burdick, 504 U.S. at 434). The degree of scrutiny “will wax
and wane with the severity of the burden imposed on the right to vote in any given case; heavier
burdens will require closer scrutiny; lighter burdens will be approved more easily.” Fish, 957 F.3d
at 1124 (quoting Burdick, 504 U.S. at 434).
The Supreme Court has declined to apply Anderson-Burdick to cases which govern
election-related speech rather than the “mechanics of the electoral process.” McIntyre v. Ohio
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Elections Comm’n, 514 U.S. 334, 345 (1995); see also Lerman v. Bd. of Elections in City of New
York, 232 F.3d 135, 146 (2d Cir. 2000) (“Restrictions on core political speech so plainly impose
a severe burden that application of strict scrutiny clearly will be necessary”) (citing Buckley v.
Am. Const. L. Found. Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring)). Strict scrutiny
applies to restrictions on core First Amendment activities. See Yes On Term Limits, Inc. v.
Savage, 550 F.3d 1023, 1028–29 (10th Cir. 2008). Under strict scrutiny, a state must assert a
significant and compelling government interest which is sufficiently narrowly tailored to serve that
interest. See Perry Educ. Ass’n. v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also
Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1181 (10th Cir. 2009) (“If a legislative enactment
burdens a fundamental right, the infringement must be narrowly tailored to serve a compelling
The Tenth Circuit has applied the Anderson-Burdick test, which it has characterized as a
“highly fact specific inquiry,” when deciding the “constitutionality of content-neutral regulation
of the voting process.”
Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1308 (10th Cir.
2007); Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000). It acknowledges that strict
scrutiny must be applied, however, “where the government restricts the overall quantum of speech
available to the election or voting process.” Campbell, 203 F.3d at 745. In fact, the Tenth Circuit
has expressly identified circumstances which merit strict scrutiny: restrictions on campaign
expenditures, the available pool of political petition circulators or other supporters of an initiative
or candidate, or the anonymity of such supporters. Id. Other courts have noted that some laws
which govern elections, particularly election-related speech and associations, go beyond the
intersection between voting rights and election administration, and veer into the area where “the
First Amendment ‘has its fullest and most urgent application.’” Tennessee State Conf. of NAACP
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v. Hargett, 420 F. Supp. 3d 683, 701 (M.D. Tenn. 2019) (quoting Eu v. San Francisco Cnty.
Democratic Cent. Comm., 489 U.S. 214, 223 (1989)).
HB 2332 addresses more than the time, place or manner of election administration, and
impacts speech in a way that is not minimal. See Utah Republican Party, 892 F.3d at 1076–77.
The Ballot Application Restrictions regulate First Amendment-protected activity in ways that are
not merely incidental; in effect, they limit “the overall quantum of speech available.” Campbell,
203 F.3d at 745; see McCullen v. Coakley, 573 U.S. 464, 489 (2014) (“Commenting on matters
of public concern [is] classic form of speech that lie[s] at the heart of the First Amendment. When
the government makes it more difficult to engage in these modes of communication, it imposes an
especially significant First Amendment burden.”) (quoting Schenck v. Pro-Choice Network of W.
New York, 519 U.S. 357, 377 (1997)). HB 2332 goes beyond invoking the State’s constitutional
authority to regulate election processes and involves direct regulation of communication among
private parties who are advocating for particular change—more voting by mail, especially in
under-represented populations. HB 2332 significantly inhibits communication with voters about
proposed political change and eliminates voting advocacy by plaintiffs and other out-of-state
entities, based on the content of their message and the residency of the advocate. Accordingly, the
Court applies strict scrutiny to evaluate plaintiffs’ likelihood of success on the merits. Campbell,
203 F.3d at 745; McIntyre, 514 U.S. at 346 (limitations on political expression subject to strict
scrutiny) (citing Meyer v. Grant, 486 U.S. 414, 420 (1988)).
Before the Court addresses plaintiffs’ likelihood of success under the strict scrutiny
standard, it notes that on this record, the difference between strict scrutiny and the AndersonBurdick balancing framework is not necessarily relevant. Anderson-Burdick falls back to a “lesssearching examination closer to rational basis” when the challenged law is “minimally
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 36 of 46
burdensome” on the exercise of constitutional rights. Ohio Democratic Party v. Husted, 834 F.3d
620, 627 (6th Cir. 2016) (citing Burdick, 504 U.S. at 434). If the burden is “severe,” however,
Anderson-Burdick leads to strict scrutiny, with restrictions failing unless they are narrowly tailored
to advance compelling state interests. Id. (citing Burdick, 504 U.S. at 434); Yes On Term Limits,
550 F.3d at 1028 (citing Republican Party of Minn. v. White, 536 U.S. 765, 774–75 (2002));
Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019) (“The first, most critical step is to consider
the severity of the restriction” and if law imposes severe burdens on plaintiffs’ rights, apply strict
Plaintiffs have produced evidence of significant burdens associated with HB 2332, and
defendants have provided almost no factual basis for disputing plaintiffs’ claims that HB 2332 will
drastically limit the number of voices advocating for the politically controversial topic of voting
by mail, limit the audience which proponents can reach and make it less likely that proponents will
gather the necessary support to continue sharing their message. See Chandler, 233 F. Supp. 2d
at 1311 (citing Meyer, 486 U.S. at 422; Meyer, 120 F.3d at 1099). HB 2332 will have the
inevitable effect of reducing the total quantum of speech on an important public issue. Plaintiffs
have shown a sufficiently heavy burden on First Amendment rights to justify a significantly more
demanding standard of review than the “rational basis” standard which defendants seek to satisfy
under Anderson-Burdick. For this reason, on this record, plaintiffs’ likelihood of success on the
merits does not depend on whether the Court applies the Anderson-Burdick balancing test.
2. Strict Scrutiny Analysis
To survive strict scrutiny, defendants must show that the restrictions of HB 2332 are
narrowly tailored to serve a compelling state interest. Yes On Term Limits, 550 F.3d at 1028
(citing Republican Party of Minn., 536 U.S. at 774–75).
Here, defendants identify three
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 37 of 46
government interests at issue: “avoiding fraud, minimizing voter confusion, and facilitating an
orderly administration of the electoral process.” Defendants’ Response To Plaintiffs’ Motion For
A Preliminary Injunction (Doc. #29) at 2. The Court analyzes each government interest in turn.
Preventing Voter Fraud
Defendants argue that HB 2332 prevents voter fraud because it limits the number of
advance ballot applications that each Kansas voter may receive. Defendants’ Response To
Plaintiffs’ Motion For A Preliminary Injunction (Doc. #29) at 15. They argue that when a voter
receives more than one ballot application, it invites fraud, which the State has a strong interest in
avoiding. Id. Fraud may affect the outcome of a close election, dilute the right of citizens to cast
ballots that carry the appropriate weight and undermine public confidence in the fairness of
elections and legitimacy of the announced outcome. Brnovich v. Democratic Nat’l Comm., 141
S. Ct. 2321, 2340 (2021); see also Crawford, 553 U.S. at 191.
Defendants’ argument has superficial appeal, but it actually boils down to an issue of
administrative efficiency. The state employs a rigorous process to make sure that no voter can
receive a duplicate mail ballot. Apparently, these procedures are highly effective.8 The real issue
seems to be that the process of preventing duplicate ballots takes more time than the process of
Defendants presented no evidence of any voter fraud effectuated through advance
voting by mail, or a single instance in which a voter received duplicate mail ballots. On October 8,
2021, when the Court asked defense counsel about what evidence supported the legislature’s
rationale for HB 2332, he responded that the State had no legal duty to present evidence of its
rationale, citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993). In Beach Commc’ns, the
Supreme Court held that a statutory classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against equal protection challenge if
any reasonably conceivable state of facts could provide a rational basis for the classification. Id.
at 313–14. It also held that “for purposes of rational-basis review,” equal protection does not
demand that the legislature or governing decisionmaker articulate the purpose or rationale for the
classification. Id. at 315. This case is distinguishable, however, from Beach Commc’ns. This is
not an Equal Protection case and the Ballot Application Restrictions are not subject to rationalbasis review under Anderson-Burdick or any other test.
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 38 of 46
dealing with requests for initial ballots.
While preventing voter fraud is a potentially compelling state interest, HB 2332 is not
narrowly tailored to prevent voter fraud. HB 2332 does not limit the potential number of
applications a voter may receive, because in-state residents may mail Kansas voters any number
of advance ballot applications. In-state residents must disclose their name, address and (if the
sender is an organization) the name of its president, chief executive officer, or executive director.
HB 2332, § 3(k)(1). It seems unlikely that such information deters voter fraud, but the record
contains no evidence on that point. If such information does deter voter fraud, the State could
allow out-of-state entities to exercise their First Amendment rights after they provide the same
information. See Yes On Term Limits, 550 F.3d at 1030; see also Chandler, 292 F.3d at 1242–44.
The record contains no evidence that duplicate ballot applications disproportionately originate with
out-of-state organizations. When plaintiffs challenge a content-based speech restriction, the State
must prove that proposed alternatives would not be as effective as the challenged statute. Ashcroft
v. ACLU, 542 U.S. 656, 665 (2004). Defendants have not met that burden in this case.
In Yes On Term Limits, supra, Oklahoma residents challenged a law that created a
residency requirement for initiative petition circulators. 2007 WL 2670178 at *1. Initially, the
district court found that the state’s restriction on non-resident petition circulation was narrowly
tailored to serve the compelling state interest of promoting the integrity of the electoral system,
with an emphasis on eliminating fraud. Id. at *7–8. The state’s main evidence consisted of the
allegedly fraudulent practices of a “handful of non-resident circulators.” Yes On Term Limits,
550 F.3d at 1030–31. The Tenth Circuit overturned the district court’s ruling, finding that the
evidence did not support a finding that as a class, non-resident circulators were more likely than
resident circulators to engage in fraud. Id. at 1031. It therefore held that Oklahoma had failed to
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 39 of 46
prove that banning all non-resident circulators was a narrowly tailored means to prevent fraud. Id.
at 1029, 1031.
On this record, defendants have not shown that HB 2332 is narrowly tailored to prevent
voting fraud. The record contains no evidence that out-of-state entities are more likely than instate entities to encourage voter fraud or that HB 2332 is necessary to prevent Kansas voters from
receiving duplicate mail ballots. Plaintiffs will likely demonstrate that HB 2332 impermissibly
restricts their ability to engage in protected First Amendment activity and that it is not narrowly
tailored to serve the admittedly compelling state interest of preventing voter fraud.
Minimizing Voter Confusion
Defendants argue that HB 2332 prevents voter confusion, as it limits the number of advance
ballot applications that a Kansas voter may receive and reduces any mistaken belief that the
applications originated from election officials. Defendants’ Response To Plaintiffs’ Motion For
A Preliminary Injunction (Doc. #29) at 17. The State’s interest in minimizing voter confusion is
connected to its broader legitimate interest in protecting election integrity. Fish v. Kobach, 189 F.
Supp. 3d 1107, 1148 (D. Kan. 2016), aff’d, 840 F.3d 710 (10th Cir. 2016).
With respect to voter confusion, Mr. Caskey testified that local election offices received
more phone calls in 2020 than in 2016—an increase which he attributed to voter confusion. Mr.
Howell also testified that “after talking with voters,” it became clear that plaintiffs and similar
entities caused the duplicate ballot applications.9
Although minimizing voter confusion is a compelling interest, HB 2332 is not narrowly
tailored to serve that interest. Local election offices received more phone calls in 2020, but other
Defendants did not call any witness who claimed to be a “confused voter” or who
received numerous ballot applications. Transcript Of Oral Arguments Re: Preliminary Injunction
Before The Honorable Kathryn H. Vratil, United States Senior District Judge at 45.
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 40 of 46
than calls about COVID-19, the questions received “were consistent with previous elections.” Id.
at 68. The 2020 election had the highest return rate of ballot applications and a record number of
advance ballot votes; in fact, the number of mail-in ballots tripled. Id. at 85. Such evidence of
voter confusion is not persuasive, given the record turnout and the fact that other than COVID-19,
voter questions were not different from in previous elections. Id. at 68. Furthermore, even if some
voters were confused about receiving duplicate ballot applications, defendants presented no
evidence on how limiting participation by out-of-state speakers or mailing of personalized ballot
applications would serve to prevent that confusion.
In short, defendants have not shown that HB 2332 is narrowly tailored to alleviate voter
confusion. Plaintiffs are likely to demonstrate that HB 2332 restricts their ability to engage in
protected First Amendment activity and is not narrowly tailored to serve a compelling state
Ensuring Orderly Administration Of Elections
Defendants argue that HB 2332 ensures orderly administration of elections because it
prevents local election offices from spending limited resources to wade through duplicate
applications for mail ballots. Defendants’ Response To Plaintiffs’ Motion For A Preliminary
Injunction (Doc. #29) at 27. Preserving the integrity and administration of the electoral process is
a compelling state interest. Fish, 957 F.3d at 1133.
As noted, defendant’s witnesses testified about the amount of time which they require to
process a ballot application and ensure it is not a duplicate. Transcript Of Preliminary Injunction
Motion Hearing (Doc. #45) at 96–99. When a ballot application is received, the election official
has 48 hours to confirm that the application is not a duplicate, process it and mail a ballot to the
voter. Id. at 104. Local election officials employ ELVIS to ensure that no voter who submits more
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 41 of 46
than one ballot application receives more than one ballot. An official takes one to three minutes
to process an initial application. Id. at 69. If ELVIS indicates that a voter has already submitted
an application, the process may take on average five to ten minutes (up to 30 minutes) to determine
whether the application is a true duplicate. Id. at 99, 114. As noted above, in 2020, both the
Shawnee County and Johnson County election offices received duplicate ballot applications.
Shawnee County hired 25 to 30 people to handle ballot applications and because its office did not
anticipate so many advance applications, Shawnee County went $20,000 over budget in handling
duplicate applications. Id. at 96, 100–01. Duplicate ballot applications significantly slowed down
the Johnson County election office work flow, even with the additional 30 to 40 “temps” hired to
help manage the applications. Id. at 114–15.
While orderly administration of elections is an important government interest, HB 2332 is
not narrowly tailored to serve that interest. Defendants argue that HB 2332 will limit the number
of duplicate ballot applications which the local election offices receive, and in turn decrease the
amount of resources required to process the applications. On this record, however, it is not clear
that out-of-state entities contribute to duplicate applications in any meaningful way. The 2020
election cycle presented historic challenges defendants have not tied to advance mail ballot
applications that originated with out-of-state residents. Id. at 95–97. Before 2020, few local
election offices mailed advance ballot applications to all registered voters. In 2020, for the first
time, both Shawnee County and Johnson County proactively did so. Id. at 89, 113. Approximately
50 per cent of all counties in Kansas did so. Id. at 64. The record contains no evidence about the
source of duplicate ballot applications or whether voters submitted duplicate requests because of
COVID-19, anticipated delays in postal delivery service or increased interest in voting itself. The
2020 election cycle had a record number of Kansans register to vote, cast votes in advance, cast
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 42 of 46
votes by mail and return their actual ballots. Id. at 85. The 2020 election cycle was not similar to
the election cycles in 2008, 2012 or 2016 and the record does not address the obvious reasons for
the lack of similarity. Accordingly, while defendants’ evidence is credible, it is not persuasive.
Kansas officials publicly declared that the 2020 election was successful, without “any
widespread, systematic issues [of] voter fraud, intimidation, irregularities, or voting problems.”
Secretary Schwab Responds to November Election Delay Suggestion, Kansas Secretary of State
(July 30, 2020), https://sos.ks.gov/media-center/media-releases/2020/07-30-20-secretary-schwabresponds-to-november-election-delay-suggestion.html; Transcript Of Preliminary Injunction
Motion Hearing (Doc. #45) at 118. Mr. Caskey testified that the Kansas elections system has
25 years of experience with mail ballot applications, developing institutional knowledge,
procedures and infrastructure to “securely process the anticipated increase in mail ballots.”
Transcript Of Preliminary Injunction Motion Hearing (Doc. #45) at 83–84. Both statements refute
any compelling need to enact HB 2332, and defendants have not shown that HB 2332 is narrowly
tailored to ensure the orderly administration of elections. Plaintiffs will likely demonstrate that
HB 2332 restricts their ability to engage in protected First Amendment activity and that it is not
narrowly tailored to serve a compelling state interest.
Defendants have therefore failed to prove that HB 2332 is narrowly tailored to achieve any
of the State’s allegedly compelling interests. Given the evidence before the Court, plaintiffs have
shown that they are likely to succeed on the merits of their freedom of speech First Amendment
claim (Count 1).
For purposes of preliminary injunctive relief, the Court need not inquire into the likely
merit of plaintiffs’ other three claims.
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 43 of 46
Likelihood Of Irreparable Harm
Because they are likely to prevail on the merits of their First Amendment freedom of speech
claim, plaintiffs argue that absent an injunction, they will suffer irreparable harm. Defendants
argue that plaintiffs will not suffer any harm at all because the statute does not take effect until
early 2022, and the election offices cannot accept applications until April 1, 2022.
The Supreme Court and the Tenth Circuit have instructed that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016) (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976)); Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003); see
also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right
is involved, most courts hold that no further showing of irreparable injury is necessary”).
Precedent dictates that the Court must treat alleged First Amendment harms “gingerly.”
Heideman, 348 F.3d at 1190. Plaintiffs have sufficiently pled that unless enjoined, HB 2332 will
limit Kansas voters in navigating the path to ballot access and interfere with plaintiffs’ First
Amendment rights. See Verlo, 820 F.3d at 1127. Such losses are ones that money damages cannot
redress, so this factor weighs strongly in favor of an injunction. See United Utah Party v. Cox,
268 F. Supp. 3d 1227, 1259 (D. Utah 2017).
Balance Of The Equities
Plaintiffs argue that the prospect of substantial harm to them dramatically outweighs any
harm which an injunction would impose on defendants. Plaintiffs’ Memorandum Of Law In
Support Of Motion For Preliminary Injunction (Doc. #25) at 29. Defendants argue that plaintiffs
will suffer no harm, especially compared to the harm which the State will suffer if an injunction is
granted because whenever a State is “enjoined by a court from effectuating statutes enacted by
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 44 of 46
representatives of its people, it suffers a form of irreparable injury.” Defendants’ Response To
Plaintiffs’ Motion For A Preliminary Injunction (Doc. #29) at 29–30 (citing Maryland v. King,
567 U.S. 1301, 1303 (2012)).
Injury to plaintiffs who are deprived of First Amendment rights almost always outweighs
the potential harm to the government if an injunction is granted. Verlo v. City & Cnty. of Denver,
Co., 124 F. Supp. 3d 1083, 1095 (D. Colo. 2015), aff’d sub nom. Verlo v. Martinez, 820 F.3d 1113
(10th Cir. 2016). Here, the restrictions would substantially impair, if not effectively eliminate,
plaintiffs’ ability to convey their message to their target audience in a timely and effective manner.
For VoteAmerica, including the personalized ballot application in their communications packet is
the most “effective way to communicate that you find it important for someone to do something.”
Transcript Of Preliminary Injunction Motion Hearing (Doc. #45) at 16.
For VPC, these
distributions increased the voters’ likelihood of returning the ballot applications to their local
Kansas election offices. Id. at 46–47. The response rate would drop significantly without these
packets, as most of VPC’s targeted audience do not own printers or cannot access the internet to
secure an advance ballot application. Id. at 50.
In countering these injuries, the State has not provided evidence that any potential injury
from an injunction is fairly traceable to plaintiffs or other out-of-state organizations. See Verlo,
820 F.3d at 1127. At the evidentiary hearing and at oral argument, defendants cited no evidence
that duplicate ballot applications disproportionately originate with out-of-state speakers or that
voter confusion results from plaintiffs’ mailings, as opposed to mailings by in-state organizations
or topics that have nothing to do with voting by mail. Mr. Caskey stated that county officials
received ballot applications with improper information but did not tie those incorrect applications
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 45 of 46
to plaintiffs or to other out-of-state organizations.10 Defendants also failed to present evidence
that the time required to process duplicate applications in 2020 exceeded processing times in 2008,
2012 or 2016 on account of specific problems which HB 2332 purports to address. Transcript Of
Preliminary Injunction Motion Hearing (Doc. #45) at 75, 85. Defendants posited no numbers
which showed anything more than “light administrative burdens,” which might not even be solved
by an out-of-state ban, since Kansans may still solicit applications by mail from in-state residents.
See Fish, 840 F.3d at 754–55.
HB 2332 does not appear to address any immediate problem and delayed implementation
is not likely to cause material harm, even if it is eventually found to be constitutional and
enforceable. Awad, 670 F.3d at 1132. In weighing the balance of equities, the substantial denial
of fundamental constitutional rights clearly outweighs the prospect of demonstrated administrative
burdens on the Kansas Secretary of State and local election offices. See Fish, 840 F.3d at 755.
Plaintiffs make a strong showing that their threatened injury outweighs any potential harm
to defendants in granting this injunction.
The Public Interest
Plaintiffs argue that implementation of HB 2332 will also harm the public and that it is
always in the public interest to prevent a violation of a party’s constitutional rights. Plaintiffs’
Memorandum Of Law In Support Of Motion For Preliminary Injunction (Doc. #25) at 30; see also
Verlo, 820 F.3d at 1127. Defendants argue that public confidence in government will be
undermined if the Court invalidates a statute that has made its way through the legislative process.
Defendants’ Response To Plaintiffs’ Motion For A Preliminary Injunction (Doc. #29) at 30.
Such a connection is theoretical at best, because in 2020 out-of-state organizations
mailed ballot applications and “approximately 50 percent of the counties sent out an application
to every registered voter.” Transcript Of Preliminary Injunction Motion Hearing (Doc. #45) at 64.
Case 2:21-cv-02253-KHV-GEB Document 50 Filed 11/19/21 Page 46 of 46
The Tenth Circuit repeatedly acknowledges the strong public interest in protecting First
Amendment rights. Awad, 670 F.3d at 1132; Verlo, 820 F.3d at 1127–28 (citing Pac. Frontier v.
Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005)); Am. C.L. Union v. Johnson, 194 F.3d
1149, 1163 (10th Cir. 1999). With the other three factors leaning in favor of granting the
preliminary injunction and the critical constitutional issues which still need to be decided, the
public interest factor also leans in favor of granting the preliminary injunction.
IT IS THERFORE ORDERED that Defendants’ Motion To Dismiss Plaintiffs’
Complaint (Doc. #26) filed July 9, 2021 is OVERRULED.
IT IS FURTHERED ORDERED that Plaintiffs’ Motion For Preliminary Injunction
(Doc. #24) filed July 8, 2021 is SUSTAINED. The Court hereby enjoins enforcement of HB 2332.
Pending further order of the Court, this Order shall remain effective until the conclusion of the
Dated this 19th day of November, 2021 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
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