Federal judge denies Kansas officials’ attempt to toss challenge to ballot advocacy

Attendees of the Kansans for Constitutional Freedom watch party celebrate after Aug. 2, 2022, primary election results verify Kansans voted to keep abortion a constitutional right. (Photo by Lily O’Shea Becker/Kansas Reflector)

TOPEKA — A federal judge in Kansas declined to dismiss an advocacy organization’s lawsuit against Attorney General Kris Kobach and state ethics officials, who the judge said provided “neither good reason nor any reason at all” for asking to boot the case.

“Our court doesn’t deprive parties of their right to present claims without good reason,” U.S. District Judge Daniel Crabtree wrote in a 15-page decision published Thursday.

The rulings denied state officials’ attempts to throw out or at least pause the case, allowing claims from Kansans for Constitutional Freedom, a reproductive rights advocacy group, to proceed.

KCF sued state officials last May, arguing a law banning foreign nationals from financially contributing to efforts to support or oppose constitutional ballot measures was broad and vague and infringed upon protected political speech. KCF claims the law, which passed in April and went into effect in July, “will muzzle the speech of U.S. citizens and domestic organizations far more effectively than that of the foreign nationals Kansas claims it means to target.”

KCF, which is backed by a Washington, D.C., law firm, spent more than $11 million opposing the 2022 vote on abortion rights, and some of its funds came from foreign-backed sources, according to court filings. The group said the Kansas Legislature passed the law in part because foreign funds given to KCF contributed to the defeat of the proposed constitutional amendment on abortion.

KCF wants to continue its work and oppose an upcoming amendment to the Kansas Constitution — one that would modify the way Kansas Supreme Court justices are chosen, shifting it from a merit-based selection process to partisan elections. It is set to appear on voters’ ballots in the Aug. 4 primary.

KCF said in court filings that House Bill 2106 hampers its plans to conduct advocacy, and it already secured funding to oppose the judicial selection amendment. GOP leaders have identified the change in  judicial selection as an avenue to overturning disfavored Supreme Court decisions, including one guaranteeing the right to bodily autonomy.

The 2025 law changed the Kansas Campaign Finance Act to retroactively prohibit using foreign funds, which includes money from donors who accept foreign funds, in activities that support or oppose a constitutional amendment in Kansas.

Any person or group donating to campaigns for or against an amendment must also certify they haven’t received more than $100,000 from foreign nationals in the preceding four years. A violation results in a ban from participating in constitutional advocacy for up to four years.

The lawsuit named nine members of the Kansas Public Disclosure Commission, formerly the Governmental Ethics Commission; the commission’s executive director, Wade Wiebe; and Kobach, the attorney general who is permitted under the law to bring criminal charges against violators. The commission can bring additional civil action against violators.

Crabtree examined the state officials’ motion to dismiss the group’s claims, considering several factors, including a three-pronged analysis of prudential ripeness, or the timeliness of judicial intervention. Crabtree weighed whether the case’s issues were fit to be decided in court, if parties would suffer hardship if the court didn’t consider the case, and the potential chilling effect the law could cause on First Amendment freedoms.

He favored KCF’s positions on all three.

“Defendants assert that KCF would suffer little if this suit got dismissed,” Crabtree wrote. “It should come as no surprise that KCF claims dismissal would cause it significant, immediate hardship. KCF again has the better argument.”

In July, Crabtree denied KCF’s request to block the law from going into effect, saying the group was unlikely to succeed on claims of vagueness and broadness. In that decision, Crabtree sided with state officials, agreeing that ballot issues, particularly constitutional amendments, “shape the state’s most foundational document,” he wrote. But he also acknowledged the law’s potential to be “an unnecessary and paternalistic limit on which ideas get to compete in the marketplace of ideas.”

Kansas Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com.