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Constitution Party of Kansas Loses Political Party Appeal

By Robyn Hagan Cain | Last updated on

The Tenth Circuit Court of Appeals ruled against the Constitution Party of Kansas on Tuesday in its legal crusade to become a recognized political party.

The Constitution Party of Kansas sued the Secretary of State of Kansas, now Kris Kobach, alleging that its members’ First and Fourteenth Amendment rights are violated by the Secretary’s refusal, consistent with Kansas law, to keep track of Kansas voters’ affiliation with the Constitution Party because the Constitution Party is not a recognized political party under Kansas law.

The parties stipulated to a Joint Statement of Facts and filed cross-motions for summary judgment in the district court. The court ruled for the Secretary, finding that Kansas' system of tracking party affiliation did not unconstitutionally burden the plaintiffs' rights. The Constitution Party appealed, arguing that reversal was warranted under Baer v. Mayer, the controlling Tenth Circuit precedent.

The Tenth Circuit noted that the Constitution Party didn't argue that summary judgment was improper due to a lack of evidence in the record to support the Secretary's legal argument. (That's the appellate court's subtle way of saying, "Hey, Constitution Party. This is the argument you should have made.") The Tenth Circuit then affirmed the district court "based on [its] rejection of the argument on which the Constitution Party has chosen to hinge its appeal."

Kansas' Secretary of State can adopt rules and regulations prescribing the method of listing registered political organization members in voter registration and affiliation. When a person registers to vote in Kansas, he or she can choose to indicate a recognized party affiliation, or select "not affiliated with a party."

To become a recognized political party, the would-be party must file "petitions signed by qualified electors equal in number to at least 2% of the total vote cast for all candidates for the office of governor in the state in the last preceding general election." Any registered political organization that has previously obtained political party recognition can get ballot designation by filing a statement of organization and a certified list of officers with the Secretary.

Baer dealt with a challenge from two small political entities in Colorado that did not qualify under Colorado law as recognized political parties. One of the issues in that case involved a challenge similar to the one in this case: the plaintiffs claimed that Colorado's refusal to allow voters to indicate affiliation with entities not recognized as "political parties," unconstitutionally denied them information.

The Baer holding, however, was largely controlled by Colorado's election laws, so the Tenth Circuit concluded that the Baer holding didn't compel reversal in Kansas.

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