Kansas Supreme Court Declares Voting Is Not a Fundamental Right 

The Kansas Supreme Court last month declared that the state constitution contains no fundamental right to vote, but emphasized that voting is a “political right” subject to strong constitutional protections.

In League of Women Voters of Kansas v. Schwab, four nonpartisan civic engagement groups brought challenges to three parts of a 2021 election law. The first provision criminalizes impersonating an election official, the second requires election workers not to count absentee ballots that lack a signature or have a signature mismatch, and the third criminalizes the delivery of more than 10 voters’ absentee ballots by a single person. The organizations sued the state, alleging that the law violated the state constitution’s implied voting protections, as well as freedoms of speech and association, equal protection, and due process.

The Kansas Supreme Court ruled that voting is not an “unenumerated natural right” in the state constitution, reversing an intermediate appellate court’s holding that the Kansas Bill of Rights contains a fundamental right to vote. The high court reasoned that voting could not be a fundamental right because it is merely a way to delegate the state’s power — and not all delegations of that power come through open elections. Instead, the court said, voting is a political right, or one that allows citizens to participate in or influence their government and protect their other rights.

This distinction is crucial because it means that laws that interfere with voting face a lower form of scrutiny from courts. In civil rights litigation, the standard of review applied by courts — how closely they scrutinize government action — is often the decisive factor in whether a law is upheld. In Kansas, laws impinging on fundamental rights face strict scrutiny. Under this analysis, a law can only survive if the state can prove it has a “compelling interest” for the law and the law is “narrowly tailored” to that interest. That means the law can stand only if the state has an essential goal to achieve and it’s not possible to achieve that goal without interfering with some people’s voting rights.

Here, the court said that voting is subject to “the strongest possible constitutional protections” — a pronouncement undermined by its refusal to apply strict scrutiny. The court instead revived a standard of review from an 1884 case called State v. Butts that asks whether a law comes within the legislature’s authority to require “proper proofs” of a person’s identity before they can vote or whether the law creates “so much burden as really to be imposing additional qualifications” to vote. Under Butts, the plaintiffs must show that the restriction constitutes an “unreasonable barrier” that, in essence, creates new criteria to be eligible to vote.

Applying the test, the court found that neither the signature verification nor ballot collection provisions violated Kansans’ right to vote. Both, the court wrote, are “reasonably related” to the legislature’s authority to require “proper proofs.”

It remains to be seen what the court’s holding will mean as a practical matter when it confronts future voting limitations. Indeed, three justices who wrote partial concurrences — and who each would have found voting to be a fundamental right — underscored the majority’s lack of clarity about what protections, exactly, to afford voting.

“I cannot discern from the majority’s opinion what a voter needs to show to convince a court that legislative action has violated” the state constitution’s voting protections, Justice Eric Rosen wrote.

“I find it difficult to track what the majority opinion says,” Justice Daniel Biles chimed in, lamenting that the majority provides “meager direction for applying its standard” and what guidance it provides is “more confusing than clarifying.”

“The majority paradoxically holds that section 2 of the Kansas Constitution Bill of Rights — which states ‘all political power is inherent in the people, and all free governments are founded on their authority’ — does not, in fact, protect the right to vote,” Justice Melissa Standridge added. This decision “defies history, law, and logic and is just plain wrong,” Standridge asserted.

All three partial concurrences criticized the majority for its narrow reading of the state constitution and for ignoring history and precedent that called for the opposite finding.

The majority acknowledged, however, that other parts of the Kansas Constitution place additional bars on the state from enacting anti-voter policies. The state’s equal protection clause requires laws to apply equally to everyone and the due process clause guarantees all people sufficient notice of what is required to vote and recourse if denied a ballot. Rather than dismiss the case, the supreme court returned it to the district court to decide whether the law complies with equal protection and due process. The plaintiffs could still win on those claims. The court went further on the false representation claims, granting plaintiffs a win based on freedom of speech.

Kansas is not the only state to recently confront the breadth and strength of its constitution’s voting rights protections. Earlier this year, the Montana Supreme Court ruled that its constitution broadly recognizes the right to vote, meaning that any law that “impermissibly interferes” with that right will be reviewed under strict scrutiny. The Washington Supreme Court has taken a case that will determine what standard of review the right to vote gets in that state’s courts.

Virtually every state constitution recognizes a right to vote, yet many state legislatures have chipped away at that right in recent years. Inevitably, state courts will be called upon to decide the scope of state constitutional voting protections — with important implications for democracy.

Andrew Garber is a counsel with the Brennan Center Voting Rights and Elections Program.