The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Kansas Ban on Private Parties' Partially Prefilling Voters' Mail Ballot Applications Upheld

Eugene Volokh | 10.14.2026 5:56 PM

A short excerpt from today's longish Tenth Circuit opinion in VoteAmerica v. Schwab, by Judge Timothy Tymkovich, joined by Judges Michael Murphy and Joel Carson:

To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….

Relying on the political reaction against mail-in voting and Kansas's failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….

[W]e REVERSE the district court's judgment. The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….

The court held the law was viewpoint-neutral (and content-neutral):

VPC [plaintiff Voter Participation Center] bears the burden to show that the Prohibition was enacted with viewpoint-discriminatory purpose…. A law is adopted with improper purpose if it was adopted "because of disagreement with the message the speech conveys." …

We do not, however, assume that a law is adopted with improper purpose simply "because it may disproportionately affect speech on certain topics," or because "it has an incidental effect on some speakers or messages but not others." McCullen v. Coakley (2014)….

Kansas contends that the district court wrongly inferred improper purpose when the Prohibition's text, enactment history, and the State's justifications for the law evince no such purpose. We agree.

First, Kansas's stated interests in the Prohibition are not intrinsically tied to restricting a viewpoint. Kansas stated that the Prohibition is meant to (1) minimize voter confusion; (2) facilitate efficiency in election administration; and (3) foster confidence in and protect the integrity of the electoral process. These are each legitimate interests—and they are independent of any alleged purpose in restricting VPC's pro-mail-in-voting........

© Reason.com