VoteAmerica, et al. v. Schwab, et al. (Amicus)

In a victory for voting rights, a federal district court sided with two civic engagement organizations that challenged the Kansas law, concluding that it violated the First Amendment. When the state appealed that decision to the Tenth Circuit, the ACLU—joined by our affiliate in Colorado and other affiliates from around the country —filed an amicus brief to emphasize the force of the First Amendment protections afforded to the political speech at issue in this case.

On September 14, 2023, we filed an amicus brief together in VoteAmerica, et al. v. Schwab, et al., a voting rights and First Amendment case in the Tenth Circuit. The case presented a challenge to a Kansas law that restricted voting rights by criminally prohibiting out of state civil organizations from personalizing absentee voting applications by prefilling the voters’ basic information from the voter file. The district court struck down the statute as a violation of the First Amendment in the voting rights/electoral context, upholding the rights of organizations to support voters who want to submit absentee applications.

We urged the court to resist the state’s efforts to weaken those protections just because that speech is tangentially related to the electoral process. These efforts to diminish the First Amendment’s force are especially wrongheaded when it comes to laws regulating speech by third-party civic engagement organizations, which do not implicate the state’s interest in regulating electoral mechanics, and serve only to punish third parties for encouraging people to vote.

On November 12, 2024 the United States Court of Appeals for the Tenth Circuit issued an opinion concluding that mailing the prefilled applications constitutes speech protected by the First Amendment. However, the Court held that the free speech claim should be considered by applying intermediate scrutiny, not strict scrutiny, as the law is a content-based but viewpoint-neutral regulation.