WASHINGTON, DC – RITE has submitted an amicus brief in an important appeal underway in the Tenth Circuit challenging a lower court ruling that said that prohibiting third-parties from mailing prefilled ballot applications violates the First Amendment. This prohibition was sensibly designed to prevent private parties from injecting chaos into elections, including by sending prefilled ballot applications to long-deceased family pets, as plaintiffs have previously done in other states.
In May, a District Court invalidated Kansas’s law on the basis that plaintiffs, Vote America and the Voter Participation Center, had a First Amendment right to mass-mail prefilled mail-in ballot applications to voters on an unsolicited basis. RITE argues that sending prefilled ballot applications are not expressive and therefore not speech at all. To the extent such conduct expresses anything at all, such conduct is not legally protected under the proper legal test, which balances the minimal burden the prohibition imposes on Kansas voters with the substantial interest Kansas has in administering orderly elections. Under the right legal test, Kansas ban on prefilled ballot applications, which are often filled with errors and produce voter confusion, in unquestionably consistent with the Constitution.
“Kansans are alarmed when they receive election mail from third-parties they have never heard of that has their name and personal info already filled-in, too often with errors.Kansas is well within its rights to end this practice, which is unquestionably harmful to the orderly administration of elections. Seven other courts of appeals have rejected the legal test applied by this district court in this case. Once the court of appeals applies the correct test, we are confident Kansas law will stand, and this important protection of well-functioning elections will be reinstated.”
– Derek Lyons, President and CEO of RITE.
BACKGROUND INFORMATION
In its brief, RITE points out that the plaintiff Voter Participation Center has a “history of sending error-ridden mailers” that can—and have—caused voter confusion and chaos in election administration in prior elections.
- This case exemplifies an unfortunate trend in modern election litigation: Plaintiffs dressed up a truly minuscule burden as a putative constitutional violation requiring federal micro-management of States’ administration of their elections.
- The district court’s reasoning that pre-populating pedigree fields conveyed an “inherently expressive” message that voting by mail is “safe, secure and accessible” cannot withstand even gentle scrutiny. …. If any message about “security” of mail-in balloting is discernable from pre-filling ballot applications—and no such message is discernable—the ability of complete strangers to obtain voters’ pedigree information and fill it out for them would tend to imply the insecurity of mail-in balloting.
- Even assuming that the pre-filling of mail-in ballot applications implicates the First Amendment, which it does not, the district court erred by applying ordinary First Amendment standards instead of the Anderson-Burdick framework, which the Supreme Court has established for evaluating all constitutional challenges to the “mechanics of the electoral process.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995).
- The district court erroneously gave short shrift to Kansas’s important regulatory interests at issue here, including its interest in conducting orderly and efficient elections. … The tactics that VPC and its affiliate Center for Voter Information (“CVI”) wish to employ in Kansas have caused enormous problems in other states.
- VPC “has a history of mass mailing prefilled voter registration applications addressed to the names of dogs, long-dead voters, noncitizens, and already registered voters. On one prefilled form sent by VPC, for example, ‘Rosie Charlston’s name was complete, as was her Seattle address’; one problem: ‘Rosie was a black lab who died in 1998.’” This has caused election offices to be “inundated with terrified voters who are concerned that their personal information has been compromised or wrongly shared and they are especially upset when—as it happens all-too-frequently—the data used by this shadow group is wrong and thereby causes further alarm.”
Read a copy of RITE’s Amicus brief HERE and follow on Twitter for future updates.
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