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.