Can a candidate for Kansas office accept nominations from two different political parties for the same race?

Plain-English summary

A state senator asked the Attorney General whether a candidate could legally be nominated by more than one political party for the same office in Kansas, a practice sometimes called "fusion voting" because it lets a candidate appear as the joint nominee of, say, a major party and a smaller allied party. Fusion voting has largely disappeared from American elections over the last century, though a handful of states, including Connecticut, New York, Oregon, and Vermont, still allow it in some form.

The Attorney General explained that Kansas has banned fusion candidacies since 1901 and continues to do so under K.S.A. 25-306(a), which flatly states no person is eligible to accept more than one nomination for the same office. Related provisions reinforce the ban: a candidate cannot file to run as an independent or under one party's banner after already filing a declaration or nomination petition under another party's banner for the same office, and cannot file for a new nomination after already accepting one from a different party. If, despite these safeguards, a person somehow ends up nominated by more than one party for the same office, K.S.A. 25-306e gives the candidate seven days to file a sworn statement choosing which single nomination to accept; if the candidate does not choose, the relevant election officer makes the choice instead. The opinion noted, without weighing in, that the constitutionality of Kansas's fusion ban was the subject of pending litigation at the time, so it limited its answer strictly to what current Kansas statutes provide.

What this means for you

Candidates and campaign staff: the opinion confirms you cannot accept nominations from two different parties for the same office in Kansas; if you are somehow nominated by more than one, you have seven days to formally choose which nomination to keep, or an election officer will choose for you.

Political party officials running conventions or nominating processes: the opinion is a reminder that nominating a candidate who has already accepted another party's nomination for the same seat, or who has already filed under another banner, runs into the statutory bar in K.S.A. 25-306(b) and (c).

Anyone following the "fusion voting" debate: the opinion notes Kansas is firmly in the majority-position camp of states that prohibit multi-party nominations, contrasting it with the small handful of states, Connecticut, New York, Oregon, and Vermont, that still permit some form of fusion candidacy.

Common questions

Has fusion voting always been illegal in Kansas?
No, but close to it; the opinion notes fusion candidacies were tolerated in Kansas's early years but have been prohibited since a law first banned the practice in 1901.

What happens if a candidate accidentally ends up nominated by two parties for the same race? Under K.S.A. 25-306e, the candidate has seven days from the dual nomination to file a sworn statement designating which nomination to accept; if no designation is made in time, the election officer where the nomination papers are filed makes the choice.

Does this opinion say whether Kansas's fusion ban is constitutional? No. The opinion expressly declines to address that question because the constitutionality of the restriction was the subject of ongoing litigation at the time the opinion was issued.

Background and statutory framework

K.S.A. 25-306(a) is the core of Kansas's century-old ban on fusion candidacies, providing that no person is eligible to accept more than one nomination for the same office. Subsections (b) and (c) close off related workarounds: a person cannot file an independent declaration of candidacy or a party nomination petition for an office after already filing under another party's banner for that same office, and cannot file for a new nomination after already accepting a different party's nomination for the same office. K.S.A. 25-306e supplies the tiebreaker procedure for the rare case where a person is nominated by more than one party anyway, requiring a sworn designation within seven days or default resolution by the relevant election officer.

The opinion situated Kansas within the national landscape, noting sixteen states expressly prohibit fusion candidacies in at least some elections, four more allow a candidate to accept only one nomination, and twenty states plus the District of Columbia effectively prohibit fusion tickets by requiring party registration matching the nominating party, leaving only Connecticut, New York, Oregon, and Vermont as jurisdictions that still permit some form of true fusion voting on the general-election ballot.

Citations and references

Statutes:

• K.S.A. 25-306 (incl. (a), (b), (c))
• K.S.A. 25-306e
• K.S.A. 25-213(c)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/22864/638723797230130000

Original opinion text

August 15, 2024

ATTORNEY GENERAL OPINION NO. 2024-6

Honorable Jeff Pittman
Kansas Senate, District 5
1008 S. Broadway
Leavenworth, Kansas 66048

Re: Elections; Independent and Other Nominations Certificates;
Acceptance of Multiple Nominations Prohibited; Acceptance of One Nomination

Synopsis: According to K.S.A. 25-306(a) no person is eligible to accept the nomination of more than one party for the same office. Moreover, according to K.S.A. 25-306e, if a person is nominated by more than one party, the person must designate which party nomination the person accepts.

Dear Senator Pittman:

As a member of the Kansas Senate, you recently asked about the legality of a candidate being nominated by more than one political party for the same office.

This practice, often referred to as "fusion voting" or a "fusion candidacy," was tolerated in Kansas' early years, but has been illegal both here and in most other states for more than a century.1 A handful of states, Connecticut,2 New York,3 Oregon,4 and Vermont,5 still allow candidates to appear on a general-election

1 See R. Alton Lee, Anti-Fusion Laws in Populist Kansas, Heritage of the Great Plains (Winter 2014); James Gray Pope, Fusion, Timmons v. Twin Cities Area New Party, and the Future of Third Parties in the United States, 50 Rutgers L. Rev. 473, 484 (1998). 2 Conn. Gen. Stat. §§ 9-242, 9-453(t). 3 N.Y. Elec. Law §§ 6-120, 6-146, 9-112(4). 4 Or. Rev. Stat. § 254.135. 5 Vt. Stat. Ann. § 2474.

ballot as the nominee of more than one party, but it is a decidedly minority position.6

Kansas first prohibited fusion candidacies in 1901,7 and still prohibits them today.8 K.S.A. 25-306(a) specifically states that "[n]o person shall be eligible to accept more than one nomination for the same office." Kansas law also appears to prohibit any person from being eligible to run as either an independent or a party nominee if the person has already filed either a declaration of intention to become a candidate for the same office or a nomination petition for the same office under the banner of another party.9 A person also may not file a declaration of intention to become a candidate for office or a nomination for office if the person has accepted a nomination for the same office from another party.10 If a person is somehow still nominated by more than one party for the same office, that person must file, within seven days, a sworn statement in the office where the nomination papers are required to be filed designating which nomination the person wants to accept.11 If the candidate fails to make such a designation, the relevant election officer makes the selection for the candidate.12

For example, any candidate seeking and receiving the Republican Party nomination for the state senate could not also accept the nomination of a third party, such as the No Labels Party. If such a candidate were nominated by both parties, that candidate would have seven days to declare which party nomination the candidate accepts. Under no circumstances does Kansas law allow any person to appear on a general-election ballot as the nominee of more than one party.

6 Sixteen states expressly prohibit fusion candidacies in at least some elections. Del. Code Ann. tit.

15, § 4108; Ga. Code Ann. § 21-2-137; Ill. Comp. Stat. Ch. 10, § 5/7-12(9); Ind. Code § 3-10-1-15; K.S.A. 25-213(c); Ky. Rev. Stat. Ann. § 118.335; La. Rev. Stat. Ann. § 1280.25; Minn. Stat. § 204B.06; Mo. Rev. Stat. § 115.351; Neb. Rev. Stat. § 32-612(2); 25 Pa. Cons. Stat. Ann. § 2870(f); S.C. Code Ann. § 7-11-10(C); Tenn. Code Ann. § 2-5-101(f)(1); Tex. Elec. Code Ann. § 162.015; Wis. Stat. Ann. § 8.15(7). Four states allow a candidate to accept only one nomination. See Iowa Code § 49.39; Mich. Comp. Laws § 168.692; Mont. Code Ann. § 13-10-303; N.D. Cent. Code § 16.1-12-06. Twenty states and the District of Columbia effectively prohibit fusion tickets by requiring that a candidate be registered in the party from which he seeks nomination. See Ala. Code §§ 17-16-21, 17-16-14; Alaska Stat. § 15.25.030(14); Ariz. Rev. Stat. Ann. § 16-311(A); Cal. Elec. Code § 8002.5(a); Colo. Rev. Stat. § 1-4-601(2); D.C. Code Ann. § 1-1001.08; Fla. Stat. § 99.021(1)(b); Haw. Rev. Stat. § 12-3(a)(7); Me. Rev. Stat. tit. 21-A, § 334; Md. Elec. Law § 5-203; Mass. Gen. L. ch. 53, § 48; Nev. Rev. Stat. § 293.177; N.H. Rev. Stat. Ann. § 655:14; N.M. Stat. Ann. §§ 1-8-2, 1-8-3, 1-8-18; N.C. Gen. Stat. § 163- 106; Ohio Rev. Code Ann. § 3513.07; Okla. Stat. tit. 26, § 5-105; R.I. Gen. Laws § 17-14-1; W. Va. Code § 3-5-7; Wyo. Stat. § 22-5-204. 7 1901 Kan. Sess. Laws., ch. 177 § 5. 8 We decline to opine on the constitutionality of this restriction because it is the subject of ongoing

litigation. See United Kan., Inc. v. Schwab, No. RN-2024-CV-000184 (Reno Cty. Dist. Ct.); United Kan., Inc. v. Schwab, No. SA-2024-CV-152 (Saline Cty. Dist. Ct.). 9 K.S.A. 25-306(b). 10 K.S.A. 25-306(c). 11 K.S.A. 25-306e. 12 Id.

Sincerely,

/s/ Kris W. Kobach

Kris W. Kobach
Attorney General

/a/ Anthony J. Powell

Anthony J. Powell
Solicitor General