A federal appeals court has reversed a lower court and upheld a Kansas law that bars private groups from partially prefilling mail ballot applications before sending them to voters. The ruling treats the restriction as a content-neutral election administration measure, not a free speech violation.
In VoteAmerica v. Schwab, the U.S. Court of Appeals for the Tenth Circuit held that Kansas enacted the prohibition without an improper purpose, that the rule is viewpoint- and content-neutral, and that it survives intermediate scrutiny. Judge Timothy Tymkovich wrote the opinion, joined by Judges Michael Murphy and Joel Carson.
The case matters because it tests how far private advocacy groups may go in shaping official election paperwork, and how far states may go in protecting voters from confusion and county offices from heavy administrative drag. Kansas framed the law as a response to real operational problems. The challengers framed it as a First Amendment hit on pro-mail voting outreach.
Kansas prohibited private parties from partially prefilling applications for mail ballots before those applications go out to registered voters. VoteAmerica and the Voter Participation Center sued. They alleged the restriction infringed their freedom of speech under the First Amendment.
The district court sided with the challengers. It found an improper purpose, applied strict scrutiny, and also rejected the law under intermediate scrutiny in the alternative. The Tenth Circuit reversed that judgment and declared the prohibition constitutional.
Defense counsel for Kansas included Bradley J. Schlozman, Scott R. Schillings, and Garrett R. Roe of Hinkle Law Firm LLC. The appellate caption names Schwab among the defendants. The opinion does not expand on Schwab’s office title in the materials provided.
The panel put the burden on the Voter Participation Center to show the law was enacted with viewpoint-discriminatory purpose. A law carries an improper purpose if officials adopted it because of disagreement with the message the speech conveys. The court refused to treat uneven practical effects as proof of bad motive.
“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.’”
Kansas argued the district court wrongly inferred improper purpose when the prohibition’s text, enactment history, and the state’s justifications showed none. The Tenth Circuit agreed. It said the lower court leaned on national political debate over mail-in voting instead of the law’s own record. That approach, the panel held, was error.
Kansas stated three interests: minimize voter confusion, facilitate efficiency in election administration, and foster confidence in and protect the integrity of the electoral process. The court called those interests legitimate and independent of any alleged aim to suppress a pro-mail-in-voting viewpoint.
“VPC fails to show that Kansas enacted the Prohibition to suppress its pro-mail-voting viewpoint. The district court’s reliance on cultural antagonism against mail-in voting to infer the Kansas legislature enacted the prohibition with an improper purpose, when the law’s justifications, text, and enactment history reveal no such purpose, was in error.”
Because the challengers did not prove viewpoint discrimination, intermediate scrutiny applied rather than strict scrutiny. Under that standard, a speech restriction must serve a significant government interest, be narrowly tailored to advance that interest, and leave open ample alternative channels of communication.
The court found Kansas’s stated interests significant and grounded in concrete harm. The state pointed to voters who called in angry and perplexed by inaccurate prefilled applications. It also pointed to voters who submitted multiple applications after receiving the prefilled forms. Those problems created administrative burdens and chewed up staff time spent calming confused voters.
County election officials described a flood of calls and letters from voters frustrated by what looked like county incompetence, even when the errors came from private mailers. Howell described voters venting after receiving applications with the wrong name and address. Some had already reported information changes to the county office and were especially frustrated to see old data again.
The record showed more than a theoretical glitch. At least 3 percent of the Voter Participation Center’s Kansas voter database was inaccurate, suggesting the group sent more than 15,000 erroneous applications to Kansans during the 2020 general election. County offices reported, without exact counts, that duplicate and erroneous prefilled applications skyrocketed.
Processing time told the same story in minutes. An accurate, non-duplicate application might take three to five minutes. An error-laden or duplicate file could stretch past thirty minutes. The prohibition, the court said, reduces the volume of bad and repeat applications landing on county desks.
The Tenth Circuit held the ban is adequately tailored and does not restrict substantially more speech than necessary. Because the burden on speech is minimal, the state did not have to parade alternative regulatory schemes. Blank applications remove the confusion that hits when voters get erroneous prefilled forms after they already updated their information with the county. The court also inferred that some voters who felt pushed to submit a prefilled form will not feel the same pressure when the form arrives blank.
“Kansas’s solution, outright prohibiting the prefilling of applications, was reasonable and ‘the threat to free speech posed by the Prohibition is sufficiently small.’ There are few (if any) less-burdensome alternatives that could cure the problem because ‘the use of forms by the government inherently requires content restrictions.’ This showing is sufficient to survive narrow tailoring.”
The panel acknowledged the law might prove net neutral in some overall sense. It still held Kansas tailored the rule to a discrete problem that produced an administrative burden and directly attacked that problem. Testimony that some officials preferred prefilled applications in certain ways, as the district court noted through witnesses Cox and Shew, did not defeat the state’s tailoring showing on appeal.
The court stressed that alternative channels remain open. The Voter Participation Center remains free to choose how it advocates for mail voting, including unsolicited mailers. It may even include a separate sheet with the information it previously would have prefilled, sent alongside a blank application. That option preserves advocacy while keeping official forms clean.
In the panel’s words, the prohibition’s minimal restriction on the content of the group’s speech is permissible under the First Amendment once intermediate scrutiny is met. The decision does not ban mail-voting advocacy. It blocks private actors from filling in parts of the state’s application before the voter sees it.
The operative result is straightforward. The district court’s judgment is reversed. Kansas’s prohibition stands as constitutional under the Tenth Circuit’s intermediate-scrutiny analysis. The opinion relies on Supreme Court guidance, including McCullen v. Coakley (2014), for the rule that a facially neutral law does not become content-based merely because it may hit some topics harder than others.
Absolute calendar dates for the opinion and the original district court judgment are not stated in the available materials, which describe the appellate decision only in relative terms. The precise statutory citation for the Kansas prohibition is likewise not set out in the excerpted package. What is clear is the holding: no improper purpose on this record, intermediate scrutiny applies, and the law passes.
For election administrators, the ruling backs a simple operational choice. Keep the official application blank until the voter or an authorized process completes it. For advocacy groups, the ruling draws a line between persuasion and partial control of government forms. For voters, the court accepted Kansas’s claim that cleaner forms mean fewer angry calls, fewer needless duplicates, and less erosion of trust when a mailer gets a name or address wrong.
When private groups fill in official election paperwork before voters ever see it, states still get to police the mess that follows. Courts that demand proof of viewpoint hostility should look at the statute’s text and record, not the national mood.
