Viewpoint-Discriminatory Purpose Must Be Proven: Kansas’s Prefilled-Application Ban Survives Intermediate Scrutiny

Case: VoteAmerica v. Schwab, No. 25-3138
Court: United States Court of Appeals for the Tenth Circuit
Date: October 14, 2026
Opinion by: Circuit Judge Tymkovich, on a panel with Circuit Judges Murphy and Carson

Introduction

In VoteAmerica v. Schwab, the Tenth Circuit upheld a Kansas law prohibiting the prefilling of applications for advance mail ballots before those applications are mailed to registered voters. The decision addresses two closely connected First Amendment questions: how a challenger proves that a facially viewpoint-neutral restriction was enacted to suppress a particular viewpoint, and how closely such a restriction must fit the government’s objectives under intermediate scrutiny.

The litigation began with VoteAmerica and Voter Participation Center (VPC), organizations challenging restrictions on distributing mail-ballot applications. The defendants were Kansas Secretary of State Scott Schwab, Attorney General Kris Kobach, and Johnson County District Attorney Stephen M. Howe, each sued in an official capacity. VoteAmerica subsequently resolved its claims, leaving VPC as the organization pursuing the challenge relevant to this appeal.

The court’s principal contribution is not a general rule that content-based speech restrictions receive intermediate scrutiny. An earlier appeal had already placed this particular restriction within a narrow category of content-based but viewpoint-neutral regulations eligible for that standard. The present opinion establishes the challenger’s burden to prove viewpoint-discriminatory purpose in that setting and explains why political controversy, disproportionate effects, and an allegedly imperfect regulatory fit did not establish such a purpose on this record.

Background and Procedural History

The mailing program and Kansas’s response

VPC seeks to increase voting among traditionally underserved groups, including young voters, voters of color, and unmarried women. In 2020, VPC and its sister organization, the Center for Voter Information, mailed ballot-application materials to approximately 510,000 Kansas voters. Each mailing included a partially completed application, a letter encouraging mail voting, and a prepaid return envelope addressed to the appropriate county election office.

The organizations obtained voter information through a vendor using public registration records and commercial data. Because the information was collected approximately a month before delivery, some applications contained information that no longer matched Kansas’s continuously updated Election Voter Information System, known as ELVIS.

The stipulated record presented competing accounts of the program’s effects:

  • Errors and processing burdens: Election officials reported incorrect names, addresses, suffixes, and middle initials. An accurate, nonduplicate application generally required three to five minutes to process; an application requiring correction could take fifteen minutes, or thirty minutes or more when additional steps were necessary.
  • Duplicate applications and confusion: Some recipients believed they had to return the personalized application even after already applying. Nearly 15,000 duplicate applications reached county offices in envelopes supplied by the organizations.
  • Misplaced blame: Some voters assumed the applications came from election officials and blamed those officials for errors, including errors involving changes voters had previously reported.
  • Evidence supporting prefilling: Other officials considered prefilling useful because it could reduce voter mistakes and simplify matching applications to registration records. VPC’s expert also regarded the reported error rate as reasonable for a large mailing program.

Kansas enacted H.B. 2332 in 2021, overriding the governor’s veto. The challenged provision states that when a person solicits a registered voter by mail to apply for an advance ballot and includes an application, “[n]o portion of such application shall be completed prior to mailing.” The restriction concerns completion of the enclosed application; it does not prohibit advocacy letters or the mailing of blank applications.

The two earlier decisions

The district court initially held that the mailings involved protected speech, applied strict scrutiny, and enjoined the prohibition. In VoteAmerica v. Schwab, 121 F.4th 822 (10th Cir. 2024), designated VoteAmerica I, the Tenth Circuit agreed that the activity was protected but rejected strict scrutiny as the automatic governing standard. It directed the district court to apply intermediate scrutiny unless Kansas had enacted the law for an improper purpose—specifically, suppressing views favoring mail voting.

On remand, VoteAmerica v. Schwab, 790 F. Supp. 3d 1255 (D. Kan. 2025), designated VoteAmerica II, found that improper purpose existed. The district court relied on political hostility toward mail voting and the perceived mismatch between the prohibition and Kansas’s asserted interests. It invalidated the law under both strict scrutiny and, alternatively, intermediate scrutiny.

A separate provision restricting out-of-state distributors had already been permanently enjoined by stipulation. Its validity was not the issue decided in this appeal.

Summary of the Opinion

The Tenth Circuit reversed the district court’s judgment and held the prefilling prohibition constitutional. Its reasoning followed five steps:

  1. Independent review: The court reviewed the First Amendment judgment and the interpretation of the stipulated facts de novo.
  2. Challenger’s burden: VPC bore the burden of overcoming the presumption of legislative good faith and establishing a viewpoint-discriminatory purpose.
  3. No improper purpose shown: Kansas’s stated interests, the statute’s text, and its enactment history did not establish an intent to suppress advocacy for mail voting. The broader political controversy did not supply the missing connection.
  4. Adequate tailoring: The record sufficiently connected prefilled applications with confusion, administrative burdens, and diminished confidence in election officials. The prohibition directly addressed those problems without substantially overburdening speech.
  5. Alternative communication remained available: VPC could continue advocating mail voting, mailing blank applications, and even enclosing a separate sheet containing the information formerly placed on the application.

The court declined to decide whether election regulations warrant a relaxed version of intermediate scrutiny because the law survived the ordinary standard.

Analysis

Precedents Cited and Their Influence

1. The earlier decisions established the framework, not the ultimate answer

VoteAmerica v. Schwab, 121 F.4th 822, supplied the controlling framework for the second appeal. It established that distributing prefilled applications was protected speech, that the prohibition was content based but facially viewpoint neutral, and that its limited threat to the exchange of ideas justified intermediate scrutiny absent improper purpose. The present panel therefore did not reopen whether the activity was expressive or formulate a generally applicable exception for election-related speech.

VoteAmerica v. Schwab, 790 F. Supp. 3d 1255, supplied the reasoning under review. Its two central conclusions—that political context and deficient fit demonstrated improper purpose, and that the law failed tailoring—became the principal targets of the appellate analysis.

2. Independent review and stipulated facts

Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015), quoting Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212 (10th Cir. 2007), supported an independent examination of the record to guard against an impermissible intrusion on free expression. These decisions explained the appellate court’s responsibility to examine the constitutional judgment rather than simply defer to the district court.

Braxton v. United States, 500 U.S. 344 (1991), addressed a more specific issue: interpreting a stipulation is not itself a factual finding. The panel therefore rejected VPC’s request for clear-error review of the district court’s interpretation of the stipulated record. This mattered particularly when the courts drew different meanings from an election official’s statement about the sources of voter confusion. The opinion does not establish that every factual finding in every First Amendment case is automatically reviewed without deference.

3. Legislative good faith and the burden of proving improper purpose

Abbott v. Perez, 585 U.S. 579 (2018), provided the central analogy: a challenger alleging discriminatory legislative intent bears the burden of proof. United States v. Amador-Bonilla, 102 F.4th 1110 (10th Cir. 2024), similarly recognized, in the equal-protection setting, the challenger’s obligation to overcome the presumption of legislative good faith.

The panel also cited Louisiana v. Callais, 146 S. Ct. 1131 (2026), for its stated requirement of proof of racially discriminatory intent in the Section 2 redistricting context. That citation served as an additional analogy about allocating the burden of proving forbidden purpose; the present case did not decide a Voting Rights Act claim.

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022), and its citation to Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), extended the comparison into First Amendment doctrine. Those authorities recognize that a claimant may establish a free-exercise violation by showing governmental targeting of religious practice. Together, these cases supported the panel’s new express allocation of the improper-purpose burden to VPC in this particular speech setting.

4. When a government interest is inseparable from suppressing expression

United States v. Eichman, 496 U.S. 310 (1990), provided the principal example of impermissible purpose. The federal flag-protection law purported to protect the flag’s physical integrity, but that objective was bound up with preserving its symbolic meaning against the communicative impact of desecration. The asserted justification therefore implicated suppression of expression itself.

By contrast, the panel understood Kansas’s interests—accurate administration, reduced confusion, and public confidence—as intelligible independently of any disagreement with pro-mail-voting advocacy. TikTok Inc. v. Garland, 604 U.S. 56 (2025), supplied the complementary formulation: the relevant question is whether the government adopted the restriction because it disagreed with the message conveyed.

The distinction is important. A law may affect expression without being enacted to suppress its viewpoint. The court treated the latter, not the former, as the condition that would trigger strict scrutiny under the earlier mandate.

5. Disproportionate effects, secondary effects, and regulatory purpose

McCullen v. Coakley, 573 U.S. 464 (2014), was central to the rejection of VPC’s purpose argument. The majority treated a buffer-zone law outside abortion facilities as content neutral notwithstanding its disproportionate effect on anti-abortion speakers. The panel drew from that analysis the rule that unequal practical effects do not, standing alone, establish an impermissible purpose.

VPC relied on Justice Scalia’s concurrence, which examined the law’s structure and operation more skeptically. The Tenth Circuit followed the majority instead and emphasized its distinction between purpose and tailoring. Importantly, McCullen v. Coakley did not ultimately uphold the restriction: the law failed narrow tailoring. Its relevance here was that a permissible purpose and a constitutionally adequate fit are separate questions.

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), supplied the “secondary effects” analogy. The ordinance there regulated adult theaters’ locations to address associated effects rather than suppress their expressive content. The panel similarly characterized Kansas’s law as targeting the operational consequences of prefilling rather than the message favoring mail voting.

Ward v. Rock Against Racism, 491 U.S. 781 (1989), reinforced that reasoning. A requirement to use municipal sound equipment and technicians principally addressed noise, not performers’ messages. Here, the panel considered the application-format restriction comparably distinct from VPC’s ability to control its advocacy.

6. Recognized election interests

Burson v. Freeman, 504 U.S. 191 (1992), was cited through its plurality opinion for the compelling interest in protecting voters against confusion. Burdick v. Takushi, 504 U.S. 428 (1992), supported the need for substantial election regulation to secure fair, orderly administration. The panel used these cases to validate Kansas’s objectives, not to replace the selected First Amendment scrutiny framework.

Doe v. Reed, 561 U.S. 186 (2010), established the importance of preserving electoral integrity. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008), explained that public confidence has significance independent of preventing actual fraud because confidence encourages democratic participation. This latter distinction helped answer the district court’s emphasis on the absence of demonstrated fraud.

The opinion also referenced the Commission on Federal Election Reform’s report, Building Confidence in U.S. Elections. That report supplied policy context about absentee-ballot vulnerabilities, not a judicial precedent or proof that VPC’s mailings involved fraud.

7. Speculation and the limited threat to the marketplace of ideas

Pioneer Centres Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d 1324 (10th Cir. 2017), supplied the principle that an inference becomes unreasonable when it depends on speculation sufficient to reduce the conclusion to a guess. The panel used that principle to reject the leap from national hostility toward mail voting to a particular legislature’s purpose in adopting this provision.

Davenport v. Wash. Educ. Ass'n, 551 U.S. 177 (2007), appeared through the earlier appeal’s observation about driving ideas or viewpoints from the marketplace. Its function was to explain why a ban on inserting demographic information into an application posed little danger of eliminating pro-mail-voting ideas from public debate.

8. The intermediate-scrutiny framework

Ass'n of Cmty. Orgs. for Reform Now (ACORN) v. Mun. of Golden, 744 F.2d 739 (10th Cir. 1984), established that the government bears the burden of defending a law that infringes First Amendment rights. Thus, assigning VPC the burden on improper purpose did not relieve Kansas of proving the prohibition constitutional under intermediate scrutiny.

Verlo v. Martinez, 820 F.3d 1113 (10th Cir. 2016), quoting Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012), supplied the three-part test: a significant governmental interest, narrow tailoring, and ample alternative channels of communication. Although ordinarily associated with content-neutral time, place, and manner restrictions, that test applied here because of the earlier appeal’s specific holding.

9. Narrow tailoring, evidence, and regulatory alternatives

Brewer v. City of Albuquerque, 18 F.4th 1205 (10th Cir. 2021), was the principal circuit authority on tailoring. It required evidence that specifically identified harms were real and that the restriction would alleviate them directly and materially. It also recognized that a law need not be perfectly fitted or the least burdensome imaginable option.

The panel distinguished the evidentiary failure in that case. General traffic statistics there did not sufficiently connect the challenged median restrictions to the asserted harms. Kansas, by contrast, produced testimony about the particular applications and the specific confusion and workload they generated. The court also relied on the recognition that anecdotes and common sense can support a government’s evidentiary showing.

Evans v. Sandy City, 944 F.3d 847 (10th Cir. 2019), appeared through the discussion of circuit precedent permitting a restriction to survive without a separate showing of alternative regulatory schemes. It supported the conclusion that such a showing was unnecessary where the speech burden was minimal.

10. Strict scrutiny, intermediate scrutiny, and recent Supreme Court authority

Reed v. Town of Gilbert, 576 U.S. 155 (2015), and City of Austin v. Reagan Nat'l Advert. of Austin, 596 U.S. 61 (2022), illustrated that both strict and intermediate scrutiny use the expression “narrowly tailored,” but impose different demands. Strict scrutiny requires a compelling interest and the least restrictive means; intermediate scrutiny permits greater regulatory latitude.

Free Speech Coal. v. Paxton, 606 U.S. 461 (2025), supplied the most consequential recent guidance. The panel relied on it to hold that a restriction does not fail intermediate scrutiny merely because a court identifies a less speech-restrictive alternative, and that the state need not address every aspect of a problem simultaneously.

The panel also read that decision as eliminating any independent requirement to show consideration of less restrictive alternatives, qualifying the ordinary expectation previously expressed in Brewer v. City of Albuquerque. This interpretation matters beyond the immediate dispute, although the panel independently emphasized the unusually small expressive burden involved here.

Legal Reasoning

A. Two burdens governed two different stages

The opinion carefully separates the burden of establishing improper purpose from the burden of defending the restriction. VPC first had to establish the viewpoint discrimination that would move the case from intermediate to strict scrutiny. If it failed, Kansas still had to satisfy intermediate scrutiny.

This division prevents a potentially important misunderstanding: the presumption of legislative good faith is not a presumption that every speech restriction is constitutional. It concerns the attribution of forbidden intent, not the ultimate adequacy of the government’s justification.

B. Political controversy did not establish legislative hostility to speech

The district court inferred improper purpose partly from the hostility toward mail voting surrounding the 2020 election. The appellate court found that inference insufficiently connected to the Kansas legislature’s enactment of this provision. The statute’s text did not distinguish favorable from unfavorable opinions about mail voting, and the identified legislative materials did not reveal a purpose to suppress such opinions.

The court also distinguished restricting an activity from suppressing advocacy for it. Even assuming that the separately enjoined out-of-state distributor ban reflected an intention to restrict mail voting, that did not necessarily establish an intention to suppress speech supporting mail voting. The panel did not thereby approve that separate ban; it rejected the proposed inference about the prefilling provision’s purpose.

Similarly, testimony from the Secretary of State’s Office could not simply be treated as the legislature’s own intent. In any event, that testimony encouraged voters to obtain mail-ballot applications from election offices rather than third parties, undermining the claim that it demonstrated opposition to mail voting as a viewpoint.

C. An imperfect fit was not a substitute for proof of improper purpose

The district court also reasoned that Kansas’s justifications did not sufficiently explain the prohibition’s operation. The panel treated that objection as a tailoring question. On this record, it could not substitute for evidence that the legislature sought to suppress VPC’s message.

This distinction preserves separate analytical tasks. A law enacted for an unobjectionable purpose may still burden too much speech. Conversely, a challenger’s disagreement with the law’s practical effectiveness does not by itself establish discriminatory motivation. The opinion should therefore be read as rejecting the inference drawn here, not as declaring that objective statutory evidence can never reveal forbidden purpose.

D. Kansas demonstrated a sufficiently direct connection between prefilling and harm

The tailoring analysis rested on three related connections:

  • Confusion: Personalized applications containing errors could conflict with voters’ understanding of their registration records. Personalization could also create a perceived obligation to submit another application. Blank applications would remove the erroneous inserted information and could reduce that perceived obligation.
  • Administrative inefficiency: Incorrect information and unnecessary duplicates required staff to compare records, contact voters, and resolve discrepancies. Preventing third-party prefilling directly addressed at least part of that workload.
  • Loss of confidence: Voters who mistook erroneous applications for official communications sometimes blamed election offices. Removing the prefilled errors addressed a source of that distrust.

The court accepted testimony and reasonable inference rather than requiring a precise count of every erroneous application actually submitted. The expert estimate that approximately 3% of database records presented concerns suggested roughly 15,000 erroneous mailings. That estimate was not proof that all those applications reached election offices, but it reinforced officials’ reports of actual processing problems.

The panel also rejected an all-or-nothing characterization of the confusion evidence. An official’s statement that prefilling was not “all” of the concern did not establish that it contributed nothing. The law could constitutionally address one identifiable component without resolving every source of confusion.

E. Conflicting evidence did not make the legislature’s choice unconstitutional

Some officials believed prefilling reduced mistakes, and VPC’s expert suggested that the program might reduce overall administrative burdens. The panel nevertheless distinguished helpful prefilling from the discrete problem of third-party prefilling errors.

Its reasoning did not require proof that the prohibition would produce a net administrative improvement across every relevant measure. Even if blank applications introduced other mistakes, the legislature could address the demonstrated category of third-party error. The constitutional question was whether the restriction materially addressed real harms without substantially overburdening expression—not whether it represented the best election-management policy.

That reasoning is a notable source of regulatory latitude, but it also marks a point of potential debate. Evidence that a restriction creates offsetting burdens may bear on whether its benefits are genuinely material. Here, the panel considered the concrete evidence of the targeted problem and the minimal speech burden sufficient.

F. The restriction left the substantive message largely intact

The available alternatives were unusually close substitutes for the restricted conduct. VPC could continue to mail advocacy, instructions, prepaid envelopes, and blank applications. It could also place the same personalized information on a separate enclosed sheet.

That last possibility underscores the court’s characterization of the case: Kansas regulated where information appeared within an application package, rather than excluding the underlying information or viewpoint from circulation. Although the earlier appeal recognized constitutional protection for the prefilling activity, that protection did not guarantee the most convenient or effective format for encouraging participation.

Impact and Limits

Future improper-purpose challenges will require a concrete legislative connection

The decision makes generalized political hostility an insufficient foundation for attributing viewpoint discrimination to a particular enactment. Future challengers in comparable cases will need evidence connecting the legislature’s action to suppression of a message, rather than relying principally on national controversy or the fact that one side of a debate uses the regulated practice more often.

Practical election-administration evidence can satisfy intermediate scrutiny

Election officials’ accounts of specific errors, additional processing time, duplicate submissions, and voter complaints may establish real harms without comprehensive statistical measurement. The decision does not dispense with evidence: it distinguishes concrete, regulation-specific testimony from generalized concerns disconnected from the challenged restriction.

The treatment of alternatives may influence other speech cases

The opinion’s reading of Free Speech Coal. v. Paxton reduces the force of an objection based solely on the government’s failure to investigate less restrictive options. Nevertheless, narrow tailoring remains necessary. A law burdening substantially more speech, or supported by a weaker connection between means and ends, would present a materially different case.

Election confidence does not depend entirely on proof of fraud

The district court emphasized the lack of demonstrated fraud. The appellate court instead relied on documented voter frustration and distrust arising from errors attributed to election offices. This supports regulation aimed at identifiable confidence-related harms without requiring an actual fraud incident, but it does not establish that an unsupported invocation of “election integrity” is sufficient.

The holding is narrower than a general endorsement of election-speech restrictions

The decision does not authorize viewpoint discrimination, abolish protection for voter-engagement activity, or hold that all content-based election laws receive intermediate scrutiny. It also does not decide whether a relaxed election-specific version of intermediate scrutiny exists. Its outcome depends substantially on the earlier appeal’s narrow classification, the demonstrated administrative problems, and the continued availability of nearly all of VPC’s communications.

Finally, reversing the judgment concerning prefilling does not reverse the separate stipulated injunction against the out-of-state distributor ban.

Complex Concepts Simplified

Content-based restriction
A rule that regulates speech by reference to what it contains or concerns. Such restrictions ordinarily face strict scrutiny, but the earlier appeal placed this particular rule within a narrow exception.
Viewpoint discrimination
Governmental targeting of a position within a debate—for example, suppressing support for mail voting because officials oppose that position. Unequal practical effects do not automatically prove this motive.
Presumption of legislative good faith
The starting assumption that legislators acted for permissible reasons. A challenger alleging a forbidden purpose must present evidence overcoming that assumption.
Intermediate scrutiny
A constitutional test requiring a significant government interest, a sufficiently focused restriction, and adequate alternative ways to communicate. It demands meaningful justification but not the least restrictive imaginable solution.
Narrow tailoring
A sufficiently close relationship between the problem and the restriction. Under intermediate scrutiny, a law must materially address real harms without burdening substantially more speech than necessary.
Secondary effects
Consequences associated with expressive activity that are distinct from disagreement with its message. Here, the court identified processing burdens, errors, and confusion as such consequences.
Underinclusiveness
A law’s failure to address every part of a problem. Under the standard applied here, Kansas could address problems caused by prefilling without simultaneously eliminating every cause of duplicate applications or voter confusion.
De novo review
Appellate review without deference on the question being reviewed. Here, it covered the constitutional judgment and the meaning and effect of the parties’ stipulated facts.

Conclusion

VoteAmerica v. Schwab separates proof of discriminatory legislative purpose from scrutiny of a law’s practical fit. VPC failed to establish that Kansas enacted the prefilling prohibition to suppress pro-mail-voting advocacy, while Kansas demonstrated a sufficient connection between the restriction and documented election-administration harms.

The decision’s broader significance lies in its insistence on concrete evidence of forbidden purpose and its comparatively flexible application of intermediate scrutiny. Its limiting feature is equally important: the prohibition left VPC’s substantive advocacy and most methods of communication intact. The ruling sustains a narrow application-format restriction, not a general power to suppress election-related speech.