The Kansas Court of Appeals upheld the state’s longstanding prohibition on “fusion voting”, rejecting a constitutional challenge brought by United Kansas, a minor political party, and several candidates and voters, United Kansas v. Schwab (No. 128,896), that sought to allow a single candidate to appear on the general-election ballot as the nominee of more than one political party. The decision, which affirmed the Saline County District Court’s dismissal, preserved Kansas’s more than century-old rule that a candidate may accept only one party nomination and appear only once on the ballot. United Kansas has been seen widely as a test case for a broad effort to challenge fusion-voting bans nationwide.
The Center for Election Confidence (CEC) filed an amicus brief urging the Court of Appeals to affirm. CEC emphasized that ballots are principally mechanisms for voters to select candidates and are not government-provided fora through which political parties have a constitutional right to communicate endorsements or measure the source of a candidate’s support. Further, CEC argues that fusion voting enhances the risk of voter confusion and errors in the ballot creation and tabulation processes.
The Court agreed with much of that reasoning. Although it held that the Kansas Constitution may provide broader associational protections than the federal Constitution in some circumstances, the Court concluded that Kansas’s anti-fusion laws nevertheless impose only reasonable, nondiscriminatory burdens on United Kansas’s speech and associational rights. The party remains free to endorse candidates, campaign for them, organize supporters, nominate eligible candidates, and communicate its political message outside the ballot itself. The Court rejected the proposition that the State must provide the ballot as an additional vehicle for that political expression, explaining that “ballots serve primarily to elect candidates, not as forums for political expression.”
The Court adopted a Kansas version of the Anderson-Burdick balancing framework for constitutional challenges to ballot regulations. Under that approach, severe burdens on constitutional rights receive strict scrutiny, while reasonable and nondiscriminatory restrictions may be sustained by sufficiently important state regulatory interests. Because Kansas’s anti-fusion rules do not severely burden United Kansas’s ability to speak, associate, endorse candidates, or participate in elections, the Court held that strict scrutiny did not apply.
The Court found two state interests sufficient to uphold the laws: preserving the integrity of the election process and preventing voter confusion.
Requiring each candidate to select one party nomination and appear only once places candidates on equal footing, avoids uncertainty about how votes for candidates listed more than once should be cast and counted, and promotes uniform treatment across paper and electronic voting systems, which are all key voter confidence and election integrity markers because they ensure the voting system remains understandable, transparent, and consistent. The Court rejected the argument that Kansas must adopt fusion voting simply because several other states have developed systems that permit it, explaining that those states’ policy choices do not constitutionally compel Kansas to follow the same course.
The decision closely tracks several central points advanced in CEC’s amicus brief, particularly CEC’s reliance on Timmons, its argument that the ballot itself is not a constitutionally protected forum for political messaging, and its emphasis on the State’s authority to protect the integrity and administrability of its elections.
The Court reached the result CEC urged: Kansas may continue requiring each candidate to accept only one party nomination and appear only once on the ballot, an important win for voter confidence that guards against the enhanced risks of voter confusion and errors in the ballot creation and tabulation processes that fusion voting would bring.
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.