Key Points

  • The Tenth Circuit reversed a district court judgment that had enjoined Kansas's ban on prefilling advance mail-ballot applications mailed to registered voters, Kan. Stat. Ann. ยง 25-1122(k).
  • The court held that a plaintiff bears the burden to prove that a legislature enacted a facially viewpoint-neutral law to suppress a viewpoint, and that the inquiry focuses on the government's stated interests, the law's text and its enactment history rather than the law's disparate effect.
  • The court held that the district court erred by inferring an improper purpose from national political hostility toward mail-in voting.
  • Applying intermediate scrutiny, the court held the ban narrowly tailored to Kansas's interests in minimizing voter confusion, administering efficient elections and fostering confidence in election integrity, and found ample alternative channels of communication.
  • Citing Free Speech Coalition v. Paxton (2025), the court said intermediate scrutiny imposes no requirement that the government show it considered less-restrictive alternatives.

A federal appeals court on Wednesday upheld a Kansas law that forbids anyone who mails voters an application for a mail ballot from filling in any part of the form beforehand, ruling that a trial judge erred in finding that legislators passed the law to suppress advocacy for voting by mail.

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit reversed a judgment that had blocked the provision, siding with Kansas Secretary of State Scott Schwab, Attorney General Kris Kobach and Johnson County District Attorney Stephen M. Howe over Voter Participation Center, a nonprofit that mails ballot applications to voters. Judge Tymkovich wrote the opinion for a panel that also included Judges Murphy and Carson.

The decision holds that a challenger who claims a legislature acted to silence a viewpoint must prove that motive, and that a court may not infer the motive from the national argument over mail voting. "The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history," Judge Tymkovich wrote. Instead, he wrote, the lower court "inferred an improper purpose from the national political debate on mail-in voting."

The case grew out of the 2020 election. According to facts both sides agreed to, Voter Participation Center and a sister group, the Center for Voter Information, mailed about 510,000 Kansas voters a packet with a partially prefilled ballot application, a cover letter and a prepaid return envelope. Because the groups pulled voter data about a month before the mailings arrived, the forms often contained errors.

Kansas's expert identified problems in about 3% of the group's voter records, which the court said suggested that more than 15,000 erroneous applications went to Kansas voters. County officials testified that a correct application took three to five minutes to process, while one that did not match the state's voter database could take 30 minutes or more. Ford County's election clerk heard from 20 to 30 voters a day about the mailings.

The Legislature responded in May 2021 with H.B. 2332, overriding the governor's veto by a two-thirds majority. The provision at issue states that when any person mails a voter an application for an advance voting ballot, "[n]o portion of such application shall be completed prior to mailing such application to the registered voter." A separate provision barring out-of-state residents from mailing ballot applications has been permanently blocked under an agreement between the parties. VoteAmerica, a co-plaintiff, later resolved its claims against the state.

In 2024, the Tenth Circuit held that mailing prefilled applications is protected speech. It ruled that the ban, because it regulates content without favoring a viewpoint, faced intermediate scrutiny, a middle tier of review that requires a law to serve a significant government interest without burdening substantially more speech than necessary. Strict scrutiny, a tougher test, would apply only if the challengers proved that Kansas acted with an "improper purpose."

When the case returned to the district court, the judge found that purpose. It pointed to the political climate, writing that "before and after the 2020 election, mail-in voting had become one of several scapegoats for the alleged 'stealing' of the 2020 presidential election," and to Kansas's failure to tailor the law to its stated goals. Finding that the ban failed both strict and intermediate scrutiny, the court enjoined it.

The appeals court rejected both grounds. Kansas's stated interests in reducing voter confusion, running efficient elections and protecting confidence in election integrity are unrelated to any viewpoint, Judge Tymkovich wrote. He wrote that "a court should not rely on a law's operational effect to infer an improper purpose," because the fit between a law and its goals belongs to a later stage of the analysis. "The presumption of legislative good faith dictates that a plaintiff bears the burden to show improper purpose," he added.

Voter Participation Center had argued that the ban targets only supporters of mail voting, because opponents would never prefill applications. The court said that "may be true" but held that a disproportionate effect on one viewpoint does not prove improper purpose. Rejecting the group's reliance on the out-of-state mailing ban, the court wrote that "a legislature might intend to restrict a certain activity, but that does not necessarily show it intends to also restrict advocacy for that activity."

The panel held that the ban survives intermediate scrutiny. It rejected the district court's conclusion that voters were confused only by who sent the forms, not by the prefilling. That finding rested on a county commissioner's testimony that "I don't think that the prefilled information, in and of itself, was what all of the concern was." Reviewing the agreed facts afresh, the panel read that statement to show that prefilling was part of the problem.

The court also said that the Supreme Court's 2025 decision in Free Speech Coalition v. Paxton makes clear that intermediate scrutiny carries no requirement, suggested in a 2021 Tenth Circuit precedent, that a state show it considered less restrictive alternatives.

Some election officials had testified that prefilled forms reduce voters' own mistakes. "Perhaps the Prohibition will be net neutral," Judge Tymkovich wrote. But he wrote that "Kansas has a right to act prophylactically to minimize administrative burden, and to do so in its best judgment by addressing one problem contributing to it." The court added that the group may still mail appeals for mail voting and include a sheet listing a voter's information beside a blank application.

Bradley J. Schlozman of Hinkle Law Firm LLC represented the Kansas officials. Voter Participation Center was represented by Alice C.C. Huling of the Campaign Legal Center. Kaylan Phillips of the Public Interest Legal Foundation filed a friend-of-the-court brief supporting Kansas, as did Oklahoma and 16 other states.

The opinion ends by reversing the district court's judgment, without further instructions to the trial court.