On September 14, WilmerHale filed an amicus brief in the US Court of Appeals for the Tenth Circuit on behalf of The Cato Institute (“Cato”) in Vote America, Inc. and Voter Participation Center v. Schwab et al., No. 23-3310, in support of plaintiffs-appellees’ challenge to a Kansas law that bans certain ways of helping Kansas voters obtain an advance mail-in ballot.
Plaintiffs VoteAmerica and Voter Participation Center are non-partisan, non-profit organizations dedicated to helping individuals register to vote and promoting voter turnout and civic engagement, particularly among underrepresented and underserved groups. Leading up to the November 2020 election, Plaintiffs mailed Kansas voters applications for an advance mail-in ballot that pre-filled certain information—e.g., the voter’s name and address—based on information obtained from Kansas’s state voter registration system and other commercial databases.
In 2021, Kansas enacted a law that prohibits—on pain of criminal fines and jail—any person who “solicits” a voter by mail to file an application for an advance ballot from enclosing a partially pre-filled application (“Personalized Application Prohibition”). Plaintiffs sued Kansas officials, challenging the constitutionality of the Personalized Application Prohibition. The US District Court for the District of Kansas ruled that (1) the Personalized Application Prohibition violated the First Amendment rights to free speech and association, and (2) that the Personalized Application Prohibition was unconstitutionally overbroad, both as a facial matter and as-applied. The Kansas officials appealed to the Tenth Circuit.
On appeal, WilmerHale represented Cato as amicus supporting VoteAmerica and the Voter Participation Center. Cato’s brief argued that the Personalized Application Prohibition unconstitutionally burdens the vital First Amendment rights of speech, association, and petition. The brief also argued that the Prohibition has a chilling effect on lawful activity surrounding voter registration and civic engagement, and that the Prohibition fails to satisfy strict scrutiny. In addition, the brief discussed the Prohibition’s intrusion on the principle that the public should have free access to and use of government works, including government forms like the advance ballot application.
The Cato Institute was represented by Anastasia P. Boden, Director of Cato’s Robert A. Levy Center for Constitutional Studies, and a WilmerHale team comprised of Nora Q.E. Passamaneck, David P. Yin, Mark L. Hanin and Leah Fugere, with invaluable support from Russell Davis, Patricia Taylor and Caroline-Elizabeth Powers.