VoteAmerica v. Schwab

Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 14, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ VOTEAMERICA; VOTER PARTICIPATION CENTER, Plaintiffs - Appellees, v. No. 25-3138 SCOTT SCHWAB, in his official capacity as Secretary of State of the State of Kansas; KRIS KOBACH, in his official capacity as Attorney General of the State of Kansas; STEPHEN M. HOWE, in his official capacity as District Attorney of Johnson County, Defendants - Appellants. --------------------------------------------------- PUBLIC INTEREST LEGAL FOUNDATION; STATE OF OKLAHOMA; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF OHIO; STATE OF SOUTH CAROLINA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF WEST VIRGINIA; HONEST ELECTIONS PROJECT, Amici Curiae. _________________________________  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 2 Appeal from the United States District Court for the District of Kansas (D.C. No. 2:21-CV-02253-KHV) _________________________________ Bradley J. Schlozman, Hinkle Law Firm LLC, Wichita, Kansas (Scott R. Schillings and Garrett R. Roe, Hinkle Law Firm LLC, Wichita, Kansas; Kris Kobach, Attorney General, and Anthony J. Powell, Solicitor General, Kansas Attorney General’s Office, Topeka, Kansas, with him on the briefs), for Defendants-Appellants. Alice C.C. Huling, Campaign Legal Center, Washington, District of Columbia (Danielle M. Lang and Kate Hamilton, Campaign Legal Center, Washington, District of Columbia; Jonathan Youngwood, Simpson, Thacher & Bartlett LLP, New York, New York; and Mark P. Johnson, Dentons US LLP, Kansas City, Montana, with her on the brief), for Plaintiffs-Appellees. Kaylan Phillips, Public Interest Legal Foundation, Alexandria, Virginia, filed an Amicus Curiae Brief on behalf of Public Interest Legal Foundation in Support of Defendants- Appellants. Garry M. Gaskins, II, Solicitor General, and Counsel of Record for Amicus Curiae State of Oklahoma, Zach West, Director of Special Litigation, and Will Flanagan, Assistant Solicitor General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma; Steve Marshall, Attorney General of Alabama; Stephen J. Cox, Attorney General of Alaska; Tim Griffin, Attorney General of Arkansas; James Uthmeier, Attorney General of Florida, Chris Carr, Attorney General of Georgia; Raúl Labrador, Attorney General of Idaho; Todd Rokita, Attorney General of Indiana; Brenna Bird, Attorney General of Iowa; Liz Murrill, Attorney General of Louisiana; Austin Knudsen, Attorney General of Montana; Mike Hilgers, Attorney General of Nebraska; Dave Yost, Attorney General of Ohio; Alan Wilson, Attorney General of South Carolina; Jonathan Skrmetti, Attorney General of Tennessee; Ken Paxton, Attorney General of Texas; and John B. McCuskey, Attorney General of West Virginia, filed an Amici Curiae Brief on behalf of the States of Oklahoma and 16 Other States in Support of Defendants-Appellants. Dallin B. Holt, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Phoenix, Arizona, filed an Amended Amicus Curiae Brief on behalf of Honest Elections Project in Support of Defendants-Appellants. _________________________________ Before TYMKOVICH, MURPHY, and CARSON, Circuit Judges. _________________________________ TYMKOVICH, Circuit Judge. 2  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 3 _________________________________ To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment. The district court has twice enjoined the Prohibition, and this is Kansas’s second appeal of the court’s most recent injunction. On Kansas’s first appeal, we reversed the injunction and instructed the district court to apply intermediate scrutiny to the Prohibition absent a finding that the Kansas legislature enacted it with improper motives. On remand, the district court found improper motives. Relying on the political reaction against mail-in voting and Kansas’s failure to prove an adequate fit between its stated interests and the Prohibition, the court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored. Kansas appeals again. Exercising our jurisdiction under 28 U.S.C. § 1291, we REVERSE the district court’s judgment. The district court found an improper purpose without evidence from the Prohibition’s justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted 3  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 4 without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional. I. Background The parties stipulated to the facts before the district court. We recounted many of those facts in the decision on Kansas’s first appeal, VoteAmerica v. Schwab, 121 F.4th 822 (10th Cir. 2024) [VoteAmerica I], so we will highlight only those facts relevant to this appeal. A. Factual Background Voter Participation Center (VPC) is a nonprofit organization whose “core mission is to promote voting among traditionally underserved groups—including young voters, voters of color and unmarried women.” App. 780. For purposes of this case, it promotes this mission through direct mailings, believing that sending personalized advance mail ballot applications will increase voter engagement. In 2020, VPC and its sister organization, the Center for Voter Information (CVI), sent mail ballot applications to around 510,000 Kansan voters. These mailers included a partially prefilled ballot application, a cover letter encouraging use of the mail ballot, and a pre-addressed and pre-paid envelope directed to the county election office. VPC and its counterpart obtained the needed demographic information from a third- party vendor that itself pulled public information from ELVIS, Kansas’s voter 4  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 5 registration database, as well as from commercial data. 1 Because VPC pulled the information roughly a month before voters received the prefilled applications, the mailed applications often contained errors. Kansas experienced a record-turnout election in 2020 including a surge of mail-in voting. During that election, Kansas voters and election officials expressed concerns about the mail-in voting process. Kansas Elections Director Bryan Caskey “received many calls from county election officials who complained that their offices were receiving pre-filled advance voting ballot applications in which the information on the form did not match the data in ELVIS.” App. 616. County officials were frustrated because the information mismatch increased the required time to process the ballot applications. Without any mismatch, an experienced election official processed accurate non-duplicates in three to five minutes. But when an application did not substantially match the information in ELVIS, the county needed to “cure” the error by contacting the voter. 2 Id. at 600. If a ballot application needed to be cured, the processing time would increase to about fifteen minutes of staff time. If a 1 ELVIS is Kansas’s Election Voter Information System. It is a dynamic system that is updated by county officials as they receive new voter information. 2 The information on a mail-in voting ballot application “must precisely match” the information in ELVIS for the county election office to process the application without having to contact the voter to cure mismatches or discrepancies. App. 600. “Only the most clearly inadvertent mismatches (e.g., minor misspelling of street name, such as omitting the letter ‘e’ in ‘George’ in the street ‘George Williams Way,’ or signing as ‘Jim’ despite being registered as ‘James’) [could] be overlooked.” Id. 5  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 6 voter could not be contacted, a provisional ballot was sent, and processing time increased to thirty minutes or more. If the application was a duplicate, the county likewise had to check the duplicate against the original and contact the voter to resolve any discrepancies. That process took seven to ten minutes of staff time if the voter did not need to be contacted, and fifteen to thirty minutes or more if the voter did need to be contacted. Other officials echoed Director Caskey’s concerns about the administrative burden. Shawnee County Election Commissioner Andrew Howell reported that his office “received a large number of advance voting ballot applications from voters that had been pre-filled by VPC and contained information that did not match the voters’ information in ELVIS”; “the mismatched information included erroneous addresses, last names, suffixes, and/or middle initials.” Id. at 613. 3 County officials also reported that voters were “confused” by the prefilled applications, believing that they had to complete and return the prefilled applications 3 Kansas’s expert, Ken Block, identified concerns that touched around 3% of the voter records in VPC’s database. Block’s error rate suggests that VPC and CVI sent around 15,000 error-filled applications to Kansas voters in 2020. Dr. Hersh, Plaintiffs’ expert, said that with these error rates the mailings were “accurate compared to reasonable benchmarks,” and “nothing out of the ordinary, given population churn and the logistics of sending large mailers out to voters.” App. 607. He also testified that “it seems likely that the VPC methods reduced the burden on election officials.” Id. at 606. Additionally, nearly 15,000 duplicate applications were sent to Kansas county election offices using VPC- or CVI-provided envelopes. VoteAmerica I, 121 F.4th at 829. 6  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 7 to the election office even if they had not intended to send in an application, or if they had already applied. Id. at 618. Some “expressed anger and frustration at the purported incompetency of [their county] office” and “incredulity that the office would send an application to the wrong address or use the wrong name in pre-filling the application when they had previously communicated such changes to the election office.” Id. at 614. Commissioner Howell’s office expended “substantial time and resources” responding to these voters. Id. at 619–20. Howell attested that during the 2020 election the most significant “burden and strain” on his staff from handling ballot applications was “having to contact thousands of voters who had submitted inaccurate or duplicate applications.” Id. at 619. Ford County Election Clerk Deborah Cox attested to many of the same problems in her county. Like Howell, Cox attested that voters told her office they were “confused” by the prefilled applications and some believed incorrectly that the prefilled applications had originated with her office, and that they needed to complete them even if they had previously applied. Id. at 618. She also said that “she heard from 20–30 voters per day about the advance voting ballot applications they were receiving from VPC (via CVI) in the lead-up to the 2020 General Election.” Id. at 615. To fend off the confusion and minimize the calls, she placed an advertisement in three Ford County Newspapers to remind voters of the source of the prefilled applications. At the same time, some officials believed that prefilled applications helped to minimize human error. Johnson County election officials said that they “decided to 7  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 8 pre-fill as much of the voter’s information from their registrant record as possible, believing that doing so makes it easier for the voter and reduces mistakes that we then have to work harder to fix on the back end.” Id. at 602 (citation modified). Cox testified that she would normally agree “that at least in some ways, pre-filled . . . information increases the likelihood and the ease that her office can match information between the voter file and application.” Id. at 601. Douglas County Elections Director Jamie Shew testified that his office would prefer to prefill applications if not for budgetary constraints. Responding to the surge in mail-in voting, in May 2021 the Kansas legislature enacted H.B. 2332, which contains the Prohibition at issue. The Prohibition states: if “[a]ny person” “solicits by mail a registered voter to file an application for an advance voting ballot and includes an application for an advance voting ballot in such mailing,” “[n]o portion of such application shall be completed prior to mailing such application to the registered voter.” Kan. Stat. Ann. §§ 25-1122(k)(1)–(2). The bill also contained a separate provision, the Out-of-State Distributor Ban, which provided that “[n]o person shall mail or cause to be mailed an application for an advance voting ballot, unless such person is a resident of this state or is otherwise domiciled in this state.” App. 613 (quoting Kan. Stat. Ann. § 25-1122(l)(1)). Prior to the bill’s passage, the Office of the Kansas Secretary of State submitted written testimony to the Legislature. The Office remained “neutral on this legislation but believe[d] it nicely addresse[d] growing concerns with voter information in Kansas.” Aple. App. 49. It noted that: 8  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 9 [l]eading up to the 2020 general election, state and county election offices were inundated with calls from confused voters who submitted an advance by mail ballot application but continued to receive unsolicited advance ballot applications from third parties. This created a substantial workload increase for local election offices who had to process thousands of duplicate forms at a time when county election officers were preparing for a high turnout, statewide election, in the middle of a pandemic. Id. The testimony added that “[s]ome of the mailers had the local election office as the return recipient but many had [CVI’s] Springfield office as the return address. Again, this caused widespread confusion among voters who continued to receive these mailings in September and October of last year.” Id. The Office stated that it planned to continue to encourage voters to request advance mail ballot applications from local election offices, not third parties, to reduce the voter confusion and administrative burden caused by third-party applications submitted as incomplete or duplicates. The Legislature enacted H.B. 2332 with a two-thirds majority to override the governor’s veto. B. VoteAmerica I VPC and VoteAmerica 4 sued Kansas and sought a preliminary injunction against the Prohibition in H.B. 2332 as violating their First Amendment free speech 4 VoteAmerica later resolved all claims against Kansas pursuant to a joint stipulation below. App. 776 n.1. 9  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 10 rights, which the court granted. 5 The parties then cross-moved for summary judgment. They filed stipulated facts and the case was submitted as a bench trial, without oral argument, with the summary-judgment motions serving as briefs. The parties disputed whether the Prohibition implicated the First Amendment. The district court found that mailing the prefilled applications was speech or inherently expressive conduct. And because the Prohibition restricted speech on the core political issue of mail-in voting, the court applied strict scrutiny. It then found the Prohibition was not narrowly tailored to Kansas’s interests—preventing voter confusion, facilitating the orderly and efficient administration of elections, and protecting election integrity—so the court enjoined its enforcement. On appeal, we agreed that the mailing of prefilled applications was protected First Amendment speech. VoteAmerica I, 121 F.4th at 834. But we reversed the district court’s application of strict scrutiny. We concluded that while the Prohibition was content based, it was facially viewpoint-neutral and presented a de minimis risk to the free exchange of ideas and viewpoints—so intermediate scrutiny was the appropriate standard. Id. at 850–51. We therefore remanded to the district court to apply intermediate scrutiny, absent a showing that Kansas enacted the Prohibition with an “improper purpose,” that is, to suppress views favoring mail-in voting. Id. 5 The parties stipulated to a permanent injunction against the Out-of-State Distributor Ban as violating Plaintiffs’ First and Fourteenth Amendment rights. App. 789. 10  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 11 C. VoteAmerica II On remand, the district court concluded that VPC sustained its burden to show that the Prohibition was enacted with improper purpose. VoteAmerica v. Schwab, 790 F. Supp. 3d 1255, 1276 (D. Kan. 2025) [VoteAmerica II]. The court acknowledged that Kansas’s justifications for the Prohibition, on their face, did “not reference the content of ballot application forms or reflect disagreement with the message that plaintiff conveys[.]” Id. at 1272. Yet it nevertheless inferred improper purpose from (1) contemporaneous widespread public vitriol about mail-in voting, and (2) Kansas’s failure to tailor its stated interests to the Prohibition’s operation. See id. at 1275 (noting 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”). As a result, the district court applied strict scrutiny and, alternatively, intermediate scrutiny. Although Kansas offered compelling state interests, the district court concluded that the Prohibition was not sufficiently tailored under either level of scrutiny. First, the Prohibition was not narrowly tailored to minimize voter confusion because the court concluded that voter confusion stemmed solely from the source of the prefilled applications, and not the fact that they were prefilled. And the Prohibition did not ameliorate the source confusion. Nor was the Prohibition narrowly tailored to facilitate efficient elections. Kansas did not show real administrative harm stemming from prefilled applications because it provided no evidence of how many voters submitted incomplete and 11  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 12 inaccurate prefilled applications. Even if Kansas had done so, the court concluded that the true inefficiency came from duplicate applications, not from prefilled applications. The Prohibition did not address the problem of duplication. Finally, the Prohibition was not narrowly tailored to foster confidence in and protect the integrity of Kansas’s elections. Kansas presented no evidence of voter fraud from prefilled ballots, and even if it had, the Prohibition failed to mitigate fraud because it did not limit the number of ballot applications a third party may send to a voter or that a voter may submit. The Prohibition thus failed both strict and intermediate scrutiny. The court enjoined the Prohibition, and Kansas appeals once more. II. Discussion Kansas contends that the district court erred in finding improper purpose on the record below and concluding that the Prohibition fails intermediate scrutiny. We agree on both points. A. Standard of Review We review the district court’s decision de novo, conducting “an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” Cressman v. Thompson, 798 F.3d 938, 946 (10th Cir. 2015) (quoting Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007)). This de novo review extends to the district court’s interpretation of the stipulated facts. See Braxton v. United States, 500 U.S. 344, 350 (1991). VPC urges us to review the court’s 12  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 13 interpretations for clear error. The “[d]etermination of the meaning and effect of a stipulation, however, is not a factual finding.” Id. So “we review [an interpretation of a stipulation] just as we would review a determination of meaning and effect of a contract, or consent decree, or proffer for summary judgment.” Id. B. Improper Purpose In VoteAmerica I, we instructed the district court to analyze the Prohibition under intermediate scrutiny absent a showing that Kansas adopted the law with an “improper purpose or justification.” 121 F.4th at 834. The district court concluded that Kansas did so—it enacted the Prohibition “to suppress speech which advocates voting by mail.” VoteAmerica II, 790 F. Supp. 3d at 1276. Kansas contends that the district court erred by inferring improper purpose on the record before it. 1. Legal Framework VPC bears the burden to show that the Prohibition was enacted with viewpoint-discriminatory purpose. Cf. Abbott v. Perez, 585 U.S. 579, 603 (2018) (“Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State.”). We have not yet held that a plaintiff bears the burden of showing an improper purpose (thus triggering strict scrutiny) when challenging a law that is among “the narrow group of [facially] content-based but viewpoint-neutral regulations subject only to intermediate scrutiny.” See VoteAmerica I, 121 F.4th at 848. But in the Equal Protection context, the plaintiff bears the burden to overcome the presumption of legislative good faith and show that the legislature passed the law with discriminatory intent. United States 13  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 14 v. Amador-Bonilla, 102 F.4th 1110, 1116–17 (10th Cir. 2024); cf. Louisiana v. Callais, 146 S. Ct. 1131, 1157 (2026) (holding that a plaintiff bringing a claim under Section 2 of the Voting Rights Act must show racially discriminatory intent in redistricting). The same is true in another First Amendment context, where “a plaintiff may carry the burden of proving a free exercise violation” by showing the government enacted a regulation with the improper purpose of targeting religious practice. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 525–26 (2022) (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)). So it should be here. The presumption of legislative good faith dictates that a plaintiff bears the burden to show improper purpose. To determine whether a law was adopted with improper purpose, we ask whether the government’s asserted interest is “related to the suppression of free expression.” 6 United States v. Eichman, 496 U.S. 310, 315 (1990) (emphasis added) (quotations omitted). To answer that question, we examine whether the government’s stated interest in the law is inseparable from the law’s restriction on 6 Another way a plaintiff might demonstrate that a law was enacted with an improper purpose is to prove “its restriction on expression cannot be justified without reference to the content of the regulated speech.” Eichman, 496 U.S. at 318 (citation modified). But this test is more appropriate for assessing whether a facially content- neutral restriction on speech is in fact content-based based on the government’s justifications for enacting it. See, e.g., McCullen v. Coakley, 573 U.S. 464, 479–81 (2014). And here, because the Prohibition is content-based (although of the sort that is only subject to intermediate scrutiny), we focus our improper purpose analysis on whether the statute impermissibly targets speech based on its viewpoint of favoring mail-in voting. 14  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 15 speech. A law is adopted with improper purpose if it was adopted “because of disagreement with the message the speech conveys.” TikTok Inc. v. Garland, 604 U.S. 56, 70–71 (2025). One example is United States v. Eichman, where the Court identified improper purpose in the enactment of the Flag Protection Act. 496 U.S. at 315. The Act criminalized “physically defil[ing]” the flag of the United States except when “it ha[d] become worn or soiled.” Id. at 314 (quoting 18 U.S.C. § 700 (1988 ed., Supp. I)). The government claimed its interest in the Act was “protecting the physical integrity of the flag under all circumstances” to safeguard its identity as the “symbol of the Nation.” Id. at 315 (citation modified). The Court determined that this interest was directly tied to suppressing speech—the Act suppressed flag desecration “out of concern for its likely communicative impact.” Id. at 317. As a result, the Court held that the Act was enacted with improper purpose. 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.” McCullen v. Coakley, 573 U.S. 464, 480 (2014) (citation modified); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48 (1986) (upholding an ordinance diverting the location of adult motion picture theaters away from residential areas because it was targeted at the “secondary effects” of those theaters, not the speech itself); Ward v. Rock Against Racism, 491 U.S. 781, 792 (1989) (upholding a city’s requirement that bandshell events use its sound technician and equipment because the regulation’s “principal justification” was “the city’s desire to 15  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 16 control noise levels,” an interest unrelated to the message the speakers wished to convey). After all, legislatures do not have to address all aspects of a problem or address every topic of concern. McCullen, 573 U.S. at 481 (“States adopt laws to address the problems that confront them.” (quotation omitted)). Most legislation is piecemeal or incremental. Recently, in McCullen v. Coakley, the Supreme Court reaffirmed this principle. 573 U.S. 464 (2014). It scrutinized a Massachusetts Act prohibiting standing on public walkways within thirty-five feet of entrances to facilities offering abortions. The Court concluded that the Act was not enacted with an improper purpose despite its disproportionate effect on pro-life speech on those walkways. The Act’s stated purpose was to increase public safety and access to healthcare by ensuring unobstructed walkways; concerns the Court had previously deemed permissible legislative interests. Id. at 480. And even though the Act only applied outside abortion clinics, the Court found the Act’s disparate impact on pro-life speech did not prove that the legislature acted with improper purpose. 7 See id. at 482 7 VPC nevertheless contends that disparate impact can sometimes show improper purpose and cites to Justice Scalia’s concurrence in McCullen. In McCullen, Justice Scalia argued that disproportionate impact, together with the law’s structure and operation can reveal improper purpose—and it did so in that case. See 573 U.S. at 501 (Scalia, J., concurring). But whatever merit Justice Scalia’s concurrence may have, it does not control our decision. The McCullen majority explained that we do not infer an improper purpose merely because a law might disproportionately affect some speech more than others. See id. at 480–82. We are bound to follow that principle. And in any event, we agree with the McCullen majority’s observation that “the poor fit noted by Justice 16  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 17 (“The Massachusetts Legislature amended the Act in 2007 in response to a problem that was, in its experience, limited to abortion clinics.”). In sum, to determine whether a facially viewpoint-neutral law was enacted with improper purpose, we must first determine whether the government’s stated interest is related to the suppression of free expression, like it was in Eichman. If not, and the government’s interest only incidentally restricts certain speech, as in Renton, Ward, and McCullen, the law was likely not enacted with an improper purpose. This inquiry requires us to focus on the government’s stated interests, as well as the law’s text and enactment history—not on whatever disparate effect the statute might have on some speech over other speech. With this legal framework in mind, we analyze the parties’ arguments. 2. Analysis Kansas contends that the district court wrongly inferred improper purpose when the Prohibition’s text, enactment history, and the State’s justifications for the law evince no such purpose. We agree. First, Kansas’s stated interests in the Prohibition are not intrinsically tied to restricting a viewpoint. Kansas stated that the Prohibition is meant to (1) minimize voter confusion; (2) facilitate efficiency in election administration; and (3) foster confidence in and protect the integrity of the electoral process. These are each legitimate interests—and they are independent of any alleged purpose in restricting Scalia goes to the question of narrow tailoring,” not the improper-purpose prong of the inquiry. Id. at 482. 17  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 18 VPC’s pro-mail-in-voting viewpoint. See Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion) (noting the state has a “compelling interest in protecting voters from confusion”); Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“Common sense, as well as constitutional law, compels the conclusion that . . . there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” (quotation omitted)); Doe v. Reed, 561 U.S. 186, 197 (2010) (“The State’s interest in preserving the integrity of the electoral process is undoubtedly important.”); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 197 (2008) (“While [protecting public confidence ‘in the integrity and legitimacy of representative government’] is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.”); cf. Comm’n on Fed. Election Reform, Building Confidence in U.S. Elections 46 (2005) (“Absentee ballots remain the largest source of potential voter fraud . . . [because] [a]bsentee balloting is vulnerable to abuse in several ways . . . .”). Unlike Eichman, in which the government’s stated interest in protecting the flag as the symbol of our Nation was inseparable from the Act’s prohibition on the expressive conduct of flag mutilation, Kansas’s stated interests are distinct from any alleged purpose in restricting the message, if any, presented by prefilled ballot applications. See Eichman, 496 U.S. at 317. The interests of minimizing voter confusion, facilitating election efficiency, and fostering confidence in and protecting 18  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 19 the integrity of the electoral process justify the Prohibition’s restriction without reference to the underlying speech. See id. at 315. VPC counters that we must look beyond Kansas’s stated interests to the Prohibition’s operation. For, if “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that [advances a certain viewpoint],” we should not conclude that the provision was enacted with a proper purpose “simply because the statute itself and those defending it in court say that it is[.]” See McCullen, 573 U.S. at 502 (Scalia, J., concurring). VPC highlights the Prohibition’s disproportionate effect on the pro-mail-in voting viewpoint. It urges that the Prohibition functions to target only mail-in voting advocates because those against mail-in voting would not prefill applications. That may be true, but caselaw forecloses VPC’s argument. See supra n.7. Without more, incidental disproportionate effect on one subject or viewpoint does not prove improper purpose. See McCullen, 573 U.S. at 480 (majority opinion) (“[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.”); Ward, 491 U.S. at 791 (“A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”). Instead, we conclude the Prohibition is like the laws the Court upheld in Renton and Ward against improper-purpose challenges. 19  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 20 In Renton, for example, the Court did not infer improper animus to suppress pornographic speech of adult theaters because the ordinance merely circumscribed the location for those theaters. The ordinance’s limit on location showed that it instead targeted the “secondary effects” that attended those theaters. 475 U.S. at 47– 48. So too here. The Prohibition primarily targets the negative “secondary effects” of prefilling. The Prohibition does not meaningfully target speech advocating mail-in voting or even mail-in voting itself: under the Prohibition, VPC may still advocate for advance mail-in voting within its mailers, and it may continue to send advance mail applications. And in Ward, the Court did not infer improper purpose from the regulation requiring the use of the city’s own sound equipment and technician because the city’s principal justification—controlling noise—had nothing to do with the underlying speech of respondent’s rock concerts. And the requirement “ha[d] no material impact” on any performer’s artistic control of the concert. 491 U.S at 792, 802. Just so here. The Prohibition’s interests are separate from the pro-mail-voting viewpoint that VPC communicates in its mailers, and the Prohibition has “no material” impact on VPC’s control of that message. Like the laws in Renton and Ward, the Prohibition aims at interests other than speech and only incidentally impacts VPC’s expression. 8 8 Whether the Prohibition even detrimentally affects the pro-mail-voting viewpoint is debatable. The Prohibition prohibits the filling out of non-controversial demographic information. VPC may still mail ballot applications together with inserts advocating for mail-in voting, detailed instructions, prepaid envelopes, and such. As a result, its claim that the Prohibition disparately impacts the pro-mail- 20  Appellate Case: 25-3138 Document: 82-1 Date Filed: 10/14/2026 Page: 21 The district court here noted that Kansas’s asserted justifications did not facially reflect disagreement with VPC’s proffered message, and that “viewing HB 2332 as a whole, the legislature could have enacted it to generally minimize voter confusion, mitigate workload issues for local election offices and protect the integrity of the electoral process with regard to advance ballot applications.” VoteAmerica II, 790 F. Supp. 3d at 1273. Yet the district court still concluded “that the legislature enacted the [Prohibition] because of disagreement with speech which advocates voting by mail” because Kansas’s “stated justifications do not explicitly address the logic behind the [Prohibition].” Id. But as we explained, assessing the Prohibition’s means-end fit against Kansas’s stated justifications comes at the tailoring stage; a court should not rely on a law’s operational effect to infer an improper purpose. See McCullen, 573 U.S. at 480–82. And none of the other provisions of H.B. 2332 reveal an improper motivation that we might impute onto the State’s enactment of the Prohibition. VPC points to a now-enjoined provision of H.B. 2332, the Out-of-State Distributor Ban, which prohibited non-residents and non-domiciliaries from mailing applications for mail-in voting to Kansas residents. Using that provision, VPC argues that Kansas enacted the Prohibition with the intent to suppress advocacy for mail-in voting. But its voting viewpoint is tenuous. See VoteAmerica I, 121 F.4th at 850 (“We are not sufficiently imaginative to see how the Prohibition could ‘effectively drive [any] ideas or viewpoints from the m