Kansas Court of Appeals agrees with order forbidding cross-party nominations, fusion voting

United Kansas’ lawsuit was filed against Secretary of State Scott Schwab after his office declared in 2024 that candidates nominated by two or more recognized Kansas political parties would be compelled to renounce all but one of the nominations. That led to lawsuits challenging Schwab’s directive, which were consolidated in Saline County District Court. A judge in that court dismissed the suit based on a view the plaintiffs were unlikely to prevail.

The opinion by the Court of Appeals, written by Chief Judge Sarah Warner, affirmed the district court’s perspective. The appellate court said state law forbidding multiple nominations and fusion voting were constitutional because they served important state interests, including preserving election integrity and preventing voter confusion.

“The ballot restrictions … do not violate the members of a political party’s expression and assembly rights under sections 3 and 11 of the Kansas Constitution Bill of Rights, as they serve important state interests that justify the burdens placed on the party’s desired avenue of communicating its goals,” Warner said in the opinion.

Jack Curtis, chairman of United Kansas, said the Court of Appeals’ decision would be appealed to the Kansas Supreme Court. He said state’s nullification of United Kansas’ candidate nominations was a violation of constitutional rights of speech and association.

“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,” Curtis said. “We respect the court’s decision, but disagree with the outcome.”

Curtis said the state Supreme Court should have an opportunity to “ensure the rights of our party, our candidates and Kansas voters are respected and the Kansas Constitution is honored.”

The system advocated by United Kansas would allow candidates to be nominated by two or more political parties. Votes for candidates would be tallied separately by party before combined to produce a final result. The plaintiffs say the fusion process would benefit minor parties, especially those aligned on specific public policies.

The state’s current approach to elections made it virtually impossible for candidates to be elected unless affiliated with the Republican or Democratic parties, the plaintiffs said.

For the past 125 years, Kansas has managed elections in a way that blocked fusion voting and required a candidate’s name appear on a ballot only once. Four states — Connecticut, New York, Oregon, and Vermont — enable fusion voting on general election ballots.

The decision of the Court of Appeals signed by Warner and Court of Appeals Judges Thomas Malone and Stephen Hill said the state could select a different ballot method to conduct elections, but the existing “straightforward ballot method” didn’t thwart constitutional rights.

The foundation of the case was built in 2024 by United Kansas when it nominated Lori Blake as its candidate in the 69th district in the Kansas House and Rep. Jason Probst as its candidate in the House’s 102nd District. Blake and Probst were unopposed in the Democratic Party’s primary.

The secretary of state’s office sent a letter to Blake and Probst indicating two Kansas laws required them to choose a single party with whom to affiliate on the general election ballot. The candidates opted to be listed as nominees of the Democratic Party. Both lost to Republicans in the 2024 election.

District Court Judge Jared Johnson, who handled the consolidated lawsuit, dismissed the case after concluding the state had legitimate interests in prohibiting fusion voting.

His reasons included avoiding potential for gamesmanship at the nomination stage and improperly inflating party support, avoiding loss of competition that could come from minor parties selecting already-popular candidates of major parties and avoiding diminished accountability that could result from blurring distinctions between the parties.