‘Kill an ant with an atom bomb’: Kansas Supreme Court talks election case

TOPEKA — Voting rights groups want to be able to register voters again without the threat of jail time, one attorney argues. Kansas Supreme Court Justices have to decide whether this argument has merit. 

On Tuesday, the Kansas Supreme Court heard arguments that a 2021 state voting law based on “the big lie” poses a danger to advocacy groups that want to register voters. This year’s primary and general elections add urgency to a case that has been tangled up in the state’s legal system for months.

“The plain text of the challenge provisions is almost uniquely unconstitutional,” said Elisabeth Frost, attorney arguing on behalf of The League of Women Voters of Kansas, Loud Light, Kansas Appleseed Center for Law and Justice, and the Topeka Independent Living Resource Center. “Every direction you look, you find a constitutional infirmity.”

Frost argued that voting rights groups have been hindered by a provision of House Bill 2183  law that criminalizes the impersonation of election officials. The challenged law makes it a felony to have “the appearance of being an election official” or behave in ways that would “cause another person to believe a person engaging in such conduct is an election official.”

The law was passed by the Republican-dominated Legislature in response to election security concerns, though there is no evidence of widespread fraud in Kansas. The nonprofits that filed suit argue the law is overbroad and unconstitutionally vague. Since the law’s implementation, advocacy groups have stopped registering voters out of fear their members could be mistaken as election officials and penalized. The groups complain of a significant chilling effect on their operations because of the provision.

The groups first filed suit against Secretary of State Scott Schwab and Attorney General Kris Kobach in Shawnee County District Court, but the district judge denied their injunction request. A Kansas Court of Appeals panel upheld the district judge’s ruling, but the state Supreme Court reversed the decision, ruling the groups had the right to challenge. 

During Tuesday’s arguments, Justice Dan Biles likened the law to trying to “kill an ant with an atom bomb” 

“It’s pretty effective,” Biles said. “But it does a lot more.” 

Biles boiled down his interpretation: “If this person who looks like an election official is handing out pamphlets from the election office, perfectly accurate information, they can go to jail.” 

Lawyer Bradley Schlozman, who argued on behalf of the state, admitted the legislation “may not have been crafted in the best possible manner” but said lawmakers were just trying to address confusion that occurred during the 2020 election.

“I will acknowledge that this legislation did not represent the high watermark of legislative draftsmanship,” Schlozman said, “But I think that when you apply the statute in a manner that is designed to allow it to pass constitutional muster — which under the case law, I believe that’s what the court must do — I think that it can be read in a way that would then ensure that the individual has that sufficient criminal culpability in every aspect of its of its conduct.”

Another complicating factor is a current bill in the Legislature that seeks to address lawsuit concerns. The bill, requested for introduction by Kobach’s office, would require intent for the crime of false representation of an election official. 

Schlozman said the legislation would “moot” all of the constitutional concerns discussed in the appeal, but Frost pushed back on this idea, arguing the law still would have a chilling effect and the change does not address what entails impersonating an election official. 

“It won’t be moot,” Frost said. “…There’s still a vagueness problem there.” 

The court will discuss the case before deciding on its next steps.