Tenth Circuit upholds Kansas ban on partially prefilling mail-ballot applications

The Tenth Circuit has revived and upheld a Kansas statute that bars private organizations from partially prefilling mail-ballot applications, reversing a lower-court decision that had struck down the restriction.

According to Reason, the appeals court concluded the law is constitutional after applying intermediate scrutiny and determining the statute is content- and viewpoint-neutral. VoteAmerica and Voter Participation Center challenged the Kansas prohibition on the grounds that it violated their First Amendment free-speech rights.

The district court had reached a different conclusion: it applied strict scrutiny and inferred an improper purpose from the national debate over mail-in voting, which led it to invalidate the restriction. The Tenth Circuit disagreed with that factual inference and therefore used the intermediate-scrutiny standard instead.

In setting out Kansas’s justifications, the court accepted the state’s stated interests as presented in the record: reducing voter confusion, improving election-administration efficiency, and fostering confidence in and protecting the integrity of the electoral process.

The Reason article reports that county election officials testified to concrete examples of confusion tied to prefilled forms, including administrative errors and instances where voters received prefilled applications after they had already submitted their own applications.

The Tenth Circuit also placed the evidentiary burden on Voter Participation Center to demonstrate that the statute was motivated by viewpoint discrimination. Reason reports that the court found the prohibition’s text and the state’s proffered justifications were not intrinsically tied to suppressing a particular viewpoint.

The article cites data from the record indicating at least 3% of Voter Participation Center’s Kansas voter database was inaccurate, and Reason states this suggested VPC mailed more than 15,000 erroneous applications to Kansas voters during the 2020 general election.

Those figures were presented to the court as part of the state’s evidence supporting the need for the prohibition. Courthouse News and Bloomberg Law published headline accounts corroborating the appeals court’s action.

The Tenth Circuit ruling restores the Kansas restriction and leaves the prohibition in place while clarifying the applicable constitutional standard and which party bears the burden of proving discriminatory intent.