(Updated to include comments from Blake, Probst and United Kansas)
A pair of lawsuits are contesting a more than 100-year-old state law that bans “fusion candidates” who could represent more than one party on the ballot in an effort to bring more voters to the political center in Kansas politics.
The lawsuits – one filed in Saline County and the other in Reno County – are challenging a 1901 state law that prohibits so-called “fusion tickets.”
Fusion voting allows multiple parties to nominate the same candidate for the same office in a general election with all the votes added together for a final tally.
While the two major parties nominate different candidates, third parties may cross over and endorse one of the major party candidates and “fuse” with them.
The rise of fusion voting in Kansas stems from the emergence of the new United Kansas Party that the secretary of state recognized in May after it submitted enough signatures on a petition to qualify.
The United Kansas party was created with a goal of backing fusion candidates who could represent more than one party on the ballot and help moderate politics in Kansas.
“Any law invalidating our nominees undermines the fundamental rights of candidates to associate with the parties of their choice, and of parties and voters to choose their preferred nominees,” said party Chair Jack Curtis.
“We’re taking legal action to ensure the rights of our party, our candidates and Kansas voters are respected and the Kansas Constitution is honored,” Curtis said in a statement.
United Kansas has already nominated Democratic state Rep. Jason Probst of Hutchinson, Democrat Lori Blake of Salina and Republican J.C. Moore of Wichita.
Probst and Blake are among the plaintiffs in the lawsuit as well as United Kansas, its leaders and several voters registered with the new party.
Under state law, Probst, Blake and Moore can be nominated by both parties but will have to choose one party within seven days of the state Board of Canvassers certifying the results of the primary election. The board will likely meet to certify the results in early September.
Probst doesn’t have a primary election and is basically assured the Democratic nomination. He would face one of two Republicans – Kyler Sweely or Tyson Thrall – seeking their party’s nomination in the 102nd District.
Blake also doesn’t have a primary election and is essentially assured the Democratic nomination in the 69th House District. She would run against Republican incumbent Republican Rep. Clarke Sanders of Salina.
Moore has an uphill climb against Republican Sen. Chase Blasi of Wichita in the Aug. 6 primary, although state election officials say he could run as a United Kansas candidate if he loses the primary.
Moore wouldn’t have to make the same decision as Blake or Probst if he loses the primary against the incumbent, which explains why he’s not a plaintiff at this point.
Probst said in an interview that the current method for electing candidates favors the extreme of either party and cuts out quality candidates in the middle.
“We have a primary system that rewards the most extreme version of whatever party,” Probst said.
“A lot of people that I feel would be really good in government can’t make it through a primary system and it completely excludes them from a seat at the table.”
Nevertheless, Probst said he would still run as a Democrat if he had to choose between the two parties.
Blake said in an interview that she accepted the United Kansas nomination out of reservations about the future of the two-party system.
“I really am concerned about the effectiveness of our two party system and believe that fusion voting can be an answer or a solution to people that don’t necessarily want to register as a Democrat or a Republican because they don’t think their values align,” Blake said in an interview.
Blake said the traditional third-party structure only splits the vote and “isn’t necessarily in democracy’s best interests.”
Blake said her political inclinations tends to fall in middle and not necessarily fully in one party or the other. “I live in the middle there.”
Nevertheless, Blake said she would still run as a Democrat even if she had to choose a party to run in. “I’m not going to file as a third-party candidate because it’s not an effective tool.”
Secretary of State Scott Schwab is named as a defendant in the lawsuit as well as the county clerks in Saline and Reno counties.
United Kansas and its leaders are represented by Wichita attorneys Scott Poor and Sarah Foster as well as Sharp Law of Prairie Village.
A Washington, D.C., nonprofit called United to Protect Democracy is representing the voter plaintiffs in the lawsuit.
United to Protect Democracy describes itself as a “cross-ideological nonprofit group dedicated to defeating the authoritarian threat, building more resilient democratic institutions and protecting our freedom and liberal democracy.
The group reported about $33 million in revenues during 2022, according to its latest income tax return.
“Kansans are being denied their constitutional rights to speak freely and associate together in the political process,” Beau Tremitiere, counsel at United to Protect Democracy.
“This is a straightforward issue, and we’re hopeful that the courts will, as they routinely do, enforce the state constitution to correct these errors,” Tremitiere said.
The voters also are represented by the Washington, D.C., law firm Holland & Knight, including attorney John Wood, who served as senior investigative counsel for the House Select Committee to Investigate the Jan. 6 attack on the U.S. Capitol.
Wood worked as a law clerk for U.S. Supreme Court Justice Clarence Thomas of the U.S. Supreme Court as well as former federal appellate Judge J. Michael Luttig.
The lawsuits argue that the state law banning fusion voting violates the state constitutional guarantees of freedom of speech, freedom of association and equal protection.
“The notion that the state could prevent two groups of voters from supporting the same candidate under their respective party labels would have been unfathomable when
the Kansas Constitution was ratified in 1859,” the lawsuits say.
“Fusion had been a defining feature of the antislavery movement’s rise from political obscurity to national dominance, and it would occur more frequently in ensuing decades —especially in Kansas, where “cross-nominations” allowed minor parties and their voters to play a constructive role in politics and give voice to those who felt ill-served by the dominant two parties,” they say.
The issue of fusion voting dates back more than 100 years in Kansas when the Populist Party and the Democratic Party would nominate the same individual to the same office.
After the Republicans swept the November 1900 election, in the 1901 session, they immediately enacted legislation to prohibit “fusion tickets.”
They barred anyone from accepting “more than one nomination for the same office” and said that “the name of each candidate shall be printed on the ballot once and no more.”
At that time, the candidates were nominated by convention, so the two political party leaders could agree on a fusion ticket.
The state has a law on the books that says a candidate’s name can only appear in the ballot once, which the lawsuits say is unconstitutional.
“Application of the anti-fusion laws will negate the duly-earned nomination from a ballot-qualified party and force one party’s voters to express ‘core political speech’ in support of another party in order to vote for their own nominee.
“This is the troubling reality facing the UK, its voters, and its nominees,” the lawsuits say. “The Kansas Constitution does not permit such encroachments on free speech, association, and equal protection.”
Organizers of United Kansas say fusion voting will drive voters to the political middle in an era of polarizing politics on the left and right, a point emphasized in the lawsuit.
“Most Kansans want to turn down the temperature in Topeka: less bitter partisanship and rigid ideology, more compromise and consensus,” the lawsuits say.
“There is an urgent need for principled governance to promote investment and entrepreneurship, create a level playing field for farmers and small businesses, modernize infrastructure, and protect the environment.”
The lawsuits say the new party was founded with “a clear understanding that the only way it could advance its goals of political moderation and sensible governance is to navigate the reality that only two candidates will be viable in a given election.
“This means that in most races, UK must therefore recruit candidates who are also interested in and capable of securing the nomination of one of the two major parties” such as Probst or Blake, the lawsuits say.
Fusion voting is a creature of the 19th century when it was a part of U.S. politics, particularly in the West and Midwest, according to a 2020 Idaho Law Review article exploring the issue.
“By fusing with one of the major parties, third parties were able to influence election results and thus public policy,” the law review found.
“At that time, the process of voting was different. Prior to the 1890s, citizens voted by dropping a ballot listing the candidates they had chosen in an actual ballot box.
“Typically, political parties printed the ballots which listed the party’s slate of candidates, although sometimes voters would create their own ballots.
“Under this system, the state did not participate in the determination of what groups constituted political parties or what candidates they could nominate.
“Parties that wished to fuse could lawfully list the same candidate on their ballots. And, in fact, cross-endorsing was an important part of the system.”
