League of Women Voters of Kansas v. Schwab
Civic engagement groups challenged an election law passed in 2021 that, inter alia, criminalized impersonating an election official, required election workers not to count absentee ballots that lack a signature or have a signature mismatch, and criminalized the delivery of more than 10 absentee ballots by one person. The organization alleged that the law violated the state constitution’s implied voting protections and freedoms of speech and association, equal protection, and due process. Kansas Supreme Court held there there was no “unenumerated natural right” to vote in the state constitution, meaning laws restricting voting are not subject to strict scrutiny. However, it said, voting is a political right subject to “the strongest possible constitutional protections.” The court ruled the false representation portion of the law violated freedom of speech and returned the case the district court to decide whether the other portions comply with equal protection and due process.
The supreme court reversed an intermediate appellate court, which held that the Kansas Bill of Rights contains a fundamental right to vote.
A lower court also the plaintiffs had standing to challenge a law that makes it a crime to “give the appearance of being an election official.” That court held that plaintiffs have standing to challenge a law when it “criminalizes speech and does not — within the elements of the crime — provide a high degree of specificity and clarity” establishing that only constitutionally unprotected speech is being criminalized.
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The level of judicial review can be the decisive factor in whether a law burdening the right to vote is upheld.