The Kansas Court of Appeals heard oral argument in United Kansas v. Schwab (No. 128896), a key test case in a renewed push for an expansion of fusion voting nationwide. The Center for Election Confidence (CEC) submitted an amicus brief in support of appellee Kansas Secretary of State, Scott Schwab, arguing in favor of upholding the state’s longstanding anti-fusion voting law. Numerous arguments from CEC’s brief were discussed at length during Tuesday’s oral arguments.
Fusion voting permits a candidate for an office to appear on the ballot as the nominee of multiple parties, enhancing the risk of voter confusion and errors in the ballot creation and tabulation processes, which weakens voter confidence. In its brief, CEC argues that Kansas’s 1901 ban on fusion voting is permissible because fusion voting enhances the risk of voter confusion, the question before the court is a non-justiciable political question, other states’ prohibitions have been upheld in similar circumstances, and ultimately, binding precedents expressly permit state prohibitions on fusion voting laws.
Judge Stephen D. Hill began the hearing by questioning whether the case before the court should be a discussion left to the legislature. Chief Judge Sarah E. Warner echoed this sentiment, asking if the issue was a nonjusticiable political question. CEC’s brief discussed this point at length, highlighting the Baker test used to determine when a case before a court becomes a non-justiciable political question.
CEC’s brief underscored for the court that, “[f]ive of the six Baker factors independently counsel against the Court’s intervention.” This argument was repeatedly discussed between the panel of judges and both counselors. Bradley Scholzman, counsel for the appellees, had a clear answer for the judges: the policy arguments discussed by his opposing counsel at length “are legislative determinations, and that is not the role of the judiciary to decide.” He also argued that Article 4 Section 1 of the Kansas Constitution imposes on the legislature the explicit and exclusive right to determine the mode of voting. Scholzman argued that the proper forum was the legislature, and thus, his opposing counsel has, “directed their attack at the wrong branch of government.”
The judges requested counsel for both parties to describe what Section 3 of the Kansas Bill of Rights means and how it interplays with the U.S. Constitution. In its brief before the court, CEC emphasized that Section 3, which enumerates the right to peaceably assemble, exists coextensively with the guarantees of the First Amendment of the U.S. Constitution:
Appellants cannot succeed unless the free speech and association rights under the Kansas Constitution are more protective than those rights under the U.S. Constitution. But the Kansas Supreme Court has held multiple times that those rights are coextensive.
Scholzman echoed these sentiments in his oral argument, stating that the Kansas Supreme Court in Russell and League of Women Voters II held that these clauses are to be read coextensively with the U.S. Constitution.
Scholzman went on to explain that other state supreme courts have reviewed nearly identical language and ultimately found law prohibiting fusion voting to be permissible, which is a point that is extensively discussed in CEC’s amicus brief. CEC’s brief notes that nearly every state has seen similar fusion prohibitions upheld for over a century, citing decisions from jurisdictions including Pennsylvania, Wisconsin, Indiana, and Kentucky.
CEC’s brief concludes that Kansas’ law is firmly supported by both history and precedent:
Fusion voting bans today exist in almost every state across the country and have existed in many states like Kansas for over a hundred years.
CEC looks forward to the court’s forthcoming opinion and appreciates the court’s recognition of the paramount importance of the question presented.
The Center for Election Confidence thanks Edward D. Greim, Matthew Mueller, and Michael Scott of Graves Garrett Greim LLC for their representation in this matter.