How Simpson Thacher Beat Kansas Vote-By-Mail Restrictions

By Marco Poggio | June 23, 2023, 7:02 PM EDT ·

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After seeing an uptick in the use of mail-in ballots in 2020, Kansas legislators passed a bill banning out-of-state groups from sending vote-by-mail applications to residents. Simpson Thacher recently notched a major First Amendment victory in the state as the firm convinced a judge to strike down the restrictions. (AP Photo/Charlie Riedel File)

When Kansas lawmakers enacted legislation that made it a crime for out-of-state groups to send mail-in ballot applications to voters, attorneys with Simpson Thacher & Bartlett LLP sprang into action and recently notched a major First Amendment victory in challenging the law.

The firm represented the nonprofit voter engagement groups VoteAmerica and the Voter Participation Center, which are both based outside Kansas, in convincing a federal judge last month to strike down a 2021 law that they said had unconstitutionally barred them from engaging in voter recruitment efforts in the state.

Kansas legislators passed the law, known as House Bill 2332, in 2021 over the veto of Democratic Gov. Laura Kelly. The measure was part of a wave of voting restrictions enacted by states across the country in the aftermath of the 2020 presidential election, many of which have gone on to face legal challenges.

While almost all of the other suits centered on alleged violations of the Voting Rights Act of 1965, the plaintiffs in the Kansas case went a different way: they invoked the First Amendment, arguing that the law prohibited their political speech, and encroached on interstate commerce in violation of the commerce clause in the U.S. Constitution.

The strategy paid off.

In early May, a federal judge permanently blocked the enforcement of the provisions in H.B. 2332 that criminalized personalized advance mail-in ballot applications, agreeing that they were "an unconstitutional infringement on [the groups'] First Amendment rights to speech and association" and were "unconstitutionally overbroad."

The Kansas officials named as defendants in the suit — Secretary of State Scott Schwab, Attorney General Kris Kobach and Johnson County District Attorney Stephen M. Howe — filed a notice of appeal on June 1, and the case will now go before the Tenth Circuit.

When his team of lawyers dove into the case, Jonathan K. Youngwood, the global co-chair of Simpson Thacher's litigation department, said he was fascinated by the legal issues at its core.

"It's a case that relates to voting and access to voting, but at its heart it's a First Amendment case," Youngwood told Law360 in a recent interview. "We thought it was important to take on a case like this."

group of lawyers in suits

Bonnie Jarrett, Mark Johnson, Nicole Palmadesso, Meredith Karp, Danielle Lang, Jonathan Youngwood, Rob Weiner and Alice Huling. (Courtesy of Simpson Thacher)

Voting by mail was highly popular during the 2020 elections in Kansas, which saw a record turnout of nearly 71%. Because of the challenges and health risks presented by the COVID-19 pandemic, more Kansans used mail ballots to cast their votes than ever before.

It's a trend that VoteAmerica and the Voter Participation Center say they would like to see continue, and they've made it their mission to make voting by mail a staple of the post-pandemic era.

Seeking an injunction to stop the legislation from going into effect, Youngwood and more than a half dozen Simpson Thacher lawyers invested more than 2,000 pro bono hours on the litigation, partnering with the Campaign Legal Center and lawyers with Latham & Watkins LLP and Dentons.

In a complaint filed in June 2021, the attorneys challenged the law on two fronts. First, they zeroed in on what they described as the law's "out-of-state distributor ban," which they alleged was discriminatory against interstate commerce because it explicitly forbade non-Kansas residents to mail advance ballot applications to voters, while allowing state residents to engage in the same conduct.

The law set up a civil penalty — $20 for each instance someone mails an advance ballot application — that would have resulted in millions of dollars in fines for VoteAmerica and Voter Participation Center, which send mailers to hundreds of thousands of Kansans during each election cycle, the complaint said.

The groups argued that the provision, which directly targeted their operations model, placed "a severe burden" on their rights to free speech and would have a chilling effect in the future.

In their second line of attack on H.B. 2332, the organizations argued that a separate provision in the law that prohibited mailing advance mail-in ballot applications that had been pre-completed with a voter's personal information — even where voters had provided that information themselves — undermined their speech and their ability to engage with voters.

The state, meanwhile, argued that the personalized application prohibition was necessary to minimize voter confusion, avoid inefficiencies, and reduce potential voter fraud — despite Kansas officials saying publicly that there were no such issues with fraud during the 2020 election. The state also invoked its constitutional authority to regulate elections, saying the law didn't violate the First Amendment.

During an evidentiary hearing in September 2021, VoteAmerica Vice President Daniel McCarthy said that the organization, which is incorporated in California and operates remotely, targets voters with traditionally lower turnout rates, who tend to have lower incomes and less access to comprehensive and credible news coverage.

"We believe in an expanded electorate where everybody has their right to their vote, and therefore, we have a more representative government," McCarthy said, according to a transcript of the hearing.

Voter Participation Center CEO Thomas Keith Lopach testified that his organization aims to boost turnout among people of color, unmarried women and young voters.

"We seek to help them engage in democracy," he said.

During cross-examination, an attorney for the defendants, Scott R. Schillings of Hinkle Law Firm LLC, asked Lopac about a press release in which the Voter Participation Center called H.B. 2332 "dangerous" because it made it more difficult for people to vote. Schillings noted, however, that Kansans were still able to vote by mail, regardless of the restrictions prescribed by the law.

"H.B. 2332 does not interfere with any Kansans' ability to vote by mail, does it?" Shillings asked.

"I would disagree," Lopach replied.

On the stand for the defense, elections officials for the state of Kansas testified that, during the 2020 election, their offices were overwhelmed by mail-in ballot applications that appeared duplicative. Verifying those applications diverted resources that were to be used to ensure elections ran smoothly, they said.

"It's been a stressful scene, and it's been difficult," Andrew Howell, the election commissioner of Shawnee County, Kansas, told the court.

Attorneys for the defendants argued that pre-filled mail ballot applications from the Voter Participation Center and VoteAmerica were part of the problem.

Two months after that hearing, U.S. District Judge Kathryn H. Vratil ended up siding with the plaintiffs. She issued a preliminary injunction in November 2021 blocking the law from taking effect, while denying the state's motion to toss the suit.

"Plaintiffs sufficiently allege that the out-of-state distributor ban is per se illegal," she wrote in the order, saying the nonprofits had shown that they were likely to succeed on the merits.

Judge Vratil noted that Kansas' administrative procedures to avoid voter fraud, which had proven successful in the past, undermined the state's rationale for the law.

After the ruling, Kansas stopped challenging the plaintiffs' allegations on the out-of-state distributor ban — and, as a result, can no longer seek to defend them on appeal before the Tenth Circuit — but dug its heels in on the personalized mail-in ballot application issue. A lengthy discovery process followed, and a bench trial in the case was expected to start some time in the spring.

Acting on summary judgment motions filed in the case, however, Judge Vratil issued a new sweeping order on May 4 that permanently blocked Kansas from moving ahead with the personalized mail-in ballot application ban, saying state officials did not prove that it would achieve its purported goals. She added that the ban infringed on the nonprofits' right to free speech and association.

"By proscribing all advance mail ballot application personalization, the personalized application prohibition criminalizes a substantial amount of protected speech and association," the judge wrote in her order. "Facially, the personalized application prohibition is unconstitutionally overbroad."

In processing the case, Judge Vratil applied a form of heightened scrutiny to the allegations because, she said, the plaintiffs had successfully established that their First Amendment rights were threatened by the law.

Youngwood said his clients' case was strong because it hinged on political speech, an area where American law guarantees significant protections. Plaintiffs in more typical litigation dealing with voting access, such as how long a polling place is open or how many ballot boxes are placed in a certain neighborhood, usually face longer odds, he said.

"We think that's part of what makes the case so strong," he said. "It would certainly be our hope that this district court decision will be helpful in fighting off any similar laws that somebody passes."

Counsel for the Kansas officials did not return requests for comment.

The plaintiffs are represented by Jonathan K. Youngwood, Meredith D. Karp, Bonnie Jarrett, and Nicole A. Palmadesso of Simpson Thacher & Bartlett LLP, Alice Huling, Allison Walter, Aseem Mulji, Danielle M. Lang, Hayden Johnson, and Christopher Lapinig of Campaign Legal Center, and Mark P. Johnson of Dentons.

The defendants are represented by Bradley Joseph Schlozman and Scott R. Schillings of Hinkle Law Firm LLC.

The case is VoteAmerica v. Schwab et al., case number 2:21-cv-02253, in the U.S. District Court for the District of Kansas.

--Editing by Marygrace Anderson.

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