Abstract
Recently, in League of Women Voters of Kansas v. Schwab (League II), the Kansas supreme court addressed the constitutionality of a Kansas statute that purported to combat election fraud. In League II, the court invalidated a provision criminalizing conduct that leads others falsely to believe the actor is an election official, rejected some challenges to a signature verification requirement but remanded for further consideration of others, and upheld a provision limiting the number of ballots that a single person could submit on behalf of others during an election. The decision has important implications not only for voting rights in Kansas but also for litigation in other states in which the legislature has adopted anti-fraud measures that make it harder for some people to vote. This Article examines the court’s opinion carefully, with special attention to the court’s analysis of the signature verification requirement, which effectively read the right to vote out of the Kansas constitution. This Article provides context to analyze the court’s reasoning by describing the U.S. Supreme Court’s relaxation of constitutional safeguards for voting rights and recent Kansas supreme court decisions affording greater protection for some rights under the Kansas constitution than provided for their counterparts under the U.S. Constitution. This Article then critiques the court’s analysis, focusing on the signature verification requirement. The analysis demonstrates that the majority ignored constitutional text and its own precedents and misapplied interpretive canons to engage in a constitutional shell game in which the right to vote somehow disappeared. The right to vote was not protected by section 1 of the Kansas constitution’s bill of rights, which protects natural rights, because it is a political right. It was also not protected by section 2 of the Kansas constitution’s bill of rights, which protects political rights, because articles 4 and 5 of the Kansas constitution regulate elections and protect the right of suffrage, respectively. Critically, signature verification did not violate the right of suffrage because it was a means of requiring proof of the right of suffrage rather than an impermissible voter qualification. Under the court’s analysis, it simply did not matter that the plaintiffs had evidence that the requirement could disenfranchise thousands of voters. This Article also considers the implications of this analysis going forward. It concludes that voting rights claims in Kansas will be less likely to succeed, while some potential avenues to challenge laws impeding voting rights remain available going forward. This Article also suggests that League II may signal a broader retreat from the court’s recent decisions reading the Kansas constitution’s individual rights provisions as providing greater protection than their federal counterparts.
First Page
609
Recommended Citation
Richard E. Levy, Voting Rights in Kansas after League of Women Voters v. Schwab, 102 Denv. L. Rev. 609 (Spring 2025).
Publication Statement
2025-03-01