On September 15, 2023, the ACLU of Kansas, ACLU, ACLU of Colorado, ACLU of New Mexico, ACLU of Oklahoma, ACLU of Utah, and ACLU of Wyoming filed an amicus brief in Vote America and Voter Participation Center v. Schwab, Kobach, Howe before the 10th Circuit Court of Appeals.
The brief argues that Kansas's statute criminalizes political speech as protected under the First Amendment by preventing advocacy like the Voter Participation Center from encouraging Kansans to vote by mail. The statute, known as the Personalized Application Prohibition, prohibits these organizations from pre-filling any “portion” of an “application for an advance voting ballot,” even if the information supplied is truthful and accurate. The defendants, Secretary of State Scott Schwab, State Attorney General Kris Kobach, and Johnson County District Attorney Stephen Howe, incorrectly disregard the First Amendment implications of the statute, which inherently focuses on third-party advocacy and is only tangential to the mechanics of the electoral process.
It violates the First Amendment’s speech protections for a state to prohibit advocacy organizations from encouraging citizens to vote by mail. The Kansas statute criminalizing such activity cannot withstand First Amendment scrutiny. The brief calls on the Court to affirm the lower court decision that applies rigorous First Amendment scrutiny to a law that stifles political speech.