The US Court of Appeals for the Tenth Circuit reversed and remanded a lower court ruling on Tuesday that allowed the organizations VoteAmerica and the Voter Participation Center (VPC) to send out mail-in ballot applications to Kansas voters with pre-filled information.

VoteAmerica and the VPC, the plaintiffs, initially brought the case against Kansas Secretary of State Scott Schwab and other state officials. The plaintiffs challenged one of the provisions in Kansas statute HB 2332 on First Amendment grounds, specifically their rights to free speech and association. The defendants argued that te statute safeguards several state interests, including minimizing potential voter fraud and voter confusion.

The appeals court determined that the key legal issue in the case was “the level of scrutiny that should be employed” when examining freedom of speech and the Kansas statute. The district court had previously agreed with the plaintiffs’ argument that “strict scrutiny” should apply, meaning that the state would need to show that the “least restrictive means” were applied to further their interests. The court agreed with the plaintiffs that the statute is a content-based regulation, but the court found it should be subject to intermediate scrutiny since it is neutral in purpose or justification. This lower level of scrutiny only requires the government to show that its means were “substantially related” to their interests.

The appeals court ultimately rejected the plaintiffs’ freedom of association claim but remitted the freedom of speech claim back to the district court, despite the defendants’ argument that free speech was not engaged. The court found the prefilled applications to be speech under the First Amendment in part because of the fact they have words on a page written by VPC, which indicates a strong presumption that free speech is engaged.

The district court previously granted an injunction against the defendants and later ruled in favor of the plaintiffs after applying strict scrutiny. The district court found both the rights to freedom of speech and association were violated as a result of that analysis. It determined the defendants had not proven that inaccurately filled applications resulted in voter confusion or that the provision at issue in the statute ensures “orderly election administration.”

Because the appeals court remanded the freedom of speech claim to the district court, the lower court will have to evaluate “whether the purpose or justification” of HB2332 was to “suppress speech favoring mail voting” to determine if it violates the plaintiffs’ right to freedom of speech.

In the 2020 election, the VPC sent voting packages to around 500,000 Kansas voters, which included a pre-addressed envelope with the voters’ names, obtained through public information. Approximately one-fifth of the voters who were sent packages mailed back those applications to election officials, with a portion of those applications being duplicates. Kansas later enacted HB2332 in 2021.

The League of Women Voters of Kansas similarly expressed concerns about HB2332 and challenged the statute, along with HB2183, in a lawsuit. The lawsuit specifically alleges issues of voter education restriction, an advocacy ban, a signature requirement, and a delivery assistance ban. Their claim over the signature provision is still pending at the trial court.