Kansas Attorney General Opinion 1992-081

ROBERT T. STEPHAN
ATTORNEY GENERAL June 24, 1992
ATTORNEY GENERAL OPINION NO. 92- 81
The Honorable Eric R. Yost
State Senator, Thirtieth District
9132 Funston Ct.
Wichita, Kansas 67207
Re: Elections--Independent and Other Nomination
Certificates; Terms of Office; Filling
Vacancies--Independent Nominations; Requirements;
Party Affiliation; Party Candidacy; Petitions
Synopsis: No person who has declared and retains a political
party affiliation in accordance with K.S.A. 25-3301
is eligible to accept an independent nomination for
office. A person who is affiliated with a
political party may, 14 days prior to the primary
election, change the person's party or voter
affiliation. If the person timely changes to an
unaffiliated status, the person may accept an
independent nomination provided the independent
nomination petitions are properly filed pursuant to
K.S.A. 1991 Supp. 25-305, as amended by 1992 House
Bill No. 3213. A person who files as a partisan
candidate in the primary election and who maintains
such candidacy may not file as an independent
candidate in the general election immediately
following. A person who has filed as a partisan
candidate in a primary election may, after
withdrawing such candidacy and timely changing to
an unaffiliated status, file as an independent
candidate in the general election.
The United States District Court for the district
of Kansas has determined that K.S.A. 1991 Supp.
25-303, as amended by 1992 Senate Bill No. 789

requires only that signers of independent
nomination petitions reside in the same county and
election district of the office sought. This
requirement does not restrict circulators to their
home county and election district. The circulators
may seek signatures anywhere in the state, but the
signers must reside in the same county and election
district as the circulators. While a qualified
elector who is circulating an independent
nomination petition is restricted to collecting
signatures of those persons residing in that area
intersected by the county and the election district
in which the qualified elector resides, the
candidate may collect signatures of persons
residing anywhere within the election district.
Cited herein: K.S.A. 1991 Supp. 25-202; 25-303, as
amended by 1992 Senate Bill No. 789; 25-305, as
amended by 1992 House Bill No. 3213; K.S.A.
25-3301; K.S.A. 1991 Supp. 25-3304; K.S.A. 25-303
(Ensley 1988); L. 1989, ch. 106, § 2; L. 1988,
ch. 119, § 1.
Dear Senator Yost:
As senator for the thirtieth district, you request our opinion
regarding interpretation of statutory provisions pertaining to
independent nominations. Specifically, you ask:
1. Whether a person who has retained a party affiliation is
prohibited from accepting nomination as an independent
candidate for office;
2. Whether a person who has filed as a partisan candidate for
office, the nomination for which is to be determined by a
primary election, may withdraw such candidacy and then file as
an independent candidate in the general election for that same
office; and
3. Whether a circulator of an independent nomination petition
is permitted to circulate the petition only in the county in
which the circulator resides.
1. Effect of party affiliation on independent nomination --

K.S.A. 1991 Supp. 25-303, as amended by 1992 Senate Bill No.
789, provides in part:
"(b) All nominations other than party
nominations shall be independent
nominations. No person who has declared
and retains a party affiliation in
accordance with K.S.A. 25-3301 and
amendments thereto shall be eligible to
accept an independent nomination for any
office."
The fundamental rule of statutory construction is that the
intent of the legislature governs when that intent can be
ascertained from the statute. Brabander v. Western
Cooperative Electric, 248 Kan. 914, 916 (1991). When a
statute is plain and unambiguous the court must give effect to
the intention of the legislature as expressed, rather than
determine what the law should or should not be. State v.
Coley, 236 Kan. 672, 675 (1985). K.S.A. 1991 Supp. 25-303,
as amended, clearly prohibits a person who has declared and
retains a party affiliation from accepting an independent
nomination.
"(b) Any person, who, having declared a
party or voter affiliation, desires to
change the same, may file a written
declaration with the county election
officer, stating the change of party or
voter affiliation. Such declaration
shall be filed not less than 14 days prior
to the date of any national, state, county
or township primary election. The county
election officer shall enter a record of
such change on the party or voter
affiliation list of such preceding primary
election in the proper column opposite the
voter's name." K.S.A. 1991 Supp. 25-3304
(emphasis added).
Therefore, a person who has declared a party or voter
affiliation may file as an independent candidate for office if
he or she changes his or her affiliation at least 14 days
prior to the primary election. Failure to do so will result
in an inability on the part of the person to accept an
independent nomination.
2. Effect of party candidacy on independent nomination --

Recognizing that "as a practical matter, there must be a
substantial regulation of elections if they are to be fair and
honest and if some sort of order, rather than chaos, is to
accompany the democratic processes," Storer v. Brown, 415
U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974), the
United States Supreme Court has provided that the mere fact
that a state's system "creates barriers . . . tending to limit
the field of candidates from which voters might choose . . .
does not of itself compel close scrutiny." Bullock v.
Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92
(1972).
"Instead, as the full court agreed in
Anderson, [460 U.S.] at 788-789;
[McDonald, 394 U.S.] at 808, 817
(Rehnquist, J., dissenting), a more
flexible standard applies. A court
considering a challenge to a state
election law must weigh 'the character and
magnitude of the asserted injury to the
rights protected by the First and
Fourteenth Amendments that the plaintiff
seeks to vindicate' against 'the precise
interests put forward by the state as
justifications for the burden imposed by
its rule,' taking into consideration 'the
extent to which those interests make it
necessary to burden the plaintiff's
rights.' Id. at 789; Tashjian, [479
U.S.] at 213-214.
"Under this standard, the rigorousness of
our inquiry into the propriety of a state
election law depends upon the extent to
which a challenged regulation burdens
First and Fourteenth Amendment rights.
Thus, as we have recognized when those
rights are subjected to 'severe'
restrictions, the regulation must be
'narrowly drawn to advance a state
interest of compelling importance.'
Norman v. Reed, 502 U.S.
(1992). But when a state election law
provision imposes only 'reasonable,
nondiscriminatory restrictions' upon the
First and Fourteenth Amendment rights of
voters, 'the State's important regulatory
interests are generally sufficient to

justify' the restrictions. Anderson,
supra, at 788; see also id., at
788-789, n. 9." Burdick v. Takushi,
60 U.S.L.W. 4459, 4461 (U.S. June 9, 1992).
After acknowledging that this standard provides no
litmus-paper test for separating those restrictions that are
valid from those that are invidious under the equal protection
clause, the United States Supreme Court in Storer v.
Brown, supra, upheld as constitutional California election
laws which forbid ballot position to an independent candidate
for elective public office if that person voted in the
immediately preceding primary election or if the person had a
registered affiliation with a qualified political party at any
time within one year prior to the immediately preceding
primary election. The court determined that "[t]he
requirement that the independent candidate not have been
affiliated with a political party for a year before the
primary is expressive of a general state policy aimed at
maintaining the integrity of the various routes to the
ballot." Id. at 733, 93 S.Ct. at 1281. Although the
restrictions addressed in Storer directly impact on the
candidate rather than the voter, the court recognized that the
state's interests supporting the restrictions are very similar
to the state's interests recognized in Rosario v
Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1
(1973). In Rosario, the court upheld a New York law
requiring that to vote in a party primary the voter must have
registered as a party member 30 days prior to the previous
general election, a date eleven months prior to the
non-presidential primary. A similar Illinois provision
requiring party registration 23 months prior to the primary
date was struck down in Kusper v. Pontikes, 414 U.S. 51,
94 S.Ct. 303, 38 L.Ed.2d 260 (1973). The United States Court
of Appeals for the Tenth District, acknowledging that
"[c]andidacy itself is not a fundamental right which is
comparable to the right to vote," Thournir v. Meyer, 909
F.2d 408, 412 (10th Cir. 1990), upheld Colorado's one-year
disaffiliation requirement for filing as an independent
candidate for office.
K.S.A. 1991 Supp. 25-202(c) provides:
"No candidate for any national, state,
county or township office shall file for
office as a partisan candidate in a
primary election and also file for office
as an independent candidate for any

national, state, county or township office
in the general election immediately
following."
The interpretation of a statute is a matter of law and it is
the function of the court to interpret the statute to give it
the effect intended by the legislature. Brabander, 248
Kan. at 917. In determining legislative intent, courts are
not limited to a mere consideration of the language employed
but may properly look into the historical background of the
enactment, the circumstances attending and subsequent to its
passage, the purposes to be accomplished and the effect the
statute may have under the various constructions suggested.
Workers Compensation Fund v. Silicon Distributing, Inc., 248
Kan. 551, 558 (1991). When a statute is susceptible of more
than one construction, it should be given the construction
which, when considered in its entirety, gives expression to
its intent and purpose, even though such construction is not
within the strict literal interpretation of the statute.
State v. Micheaux, 242 Kan. 192, 199 (1987).
L. 1989, ch. 106, S 2 (1989 House Bill No. 2393) which
contained the provision cited above, was proposed after
several potential candidates had inquired at the secretary of
state's office about filing for office as a partisan candidate
for the primary election and again as an independent candidate
for the general election, thereby guaranteeing a place on the
general election ballot. Minutes, House Committee on
Elections, February 21, 1989, attachment IV; Minutes, Senate
Committee on Elections, March 27, 1989. The provisions of
1989 House Bill No. 2393 were to prevent such dual filings,
id., and maintain the integrity of the various routes to the
ballot. The legislative intent of K.S.A. 1991 Supp. 25-202(c)
is to prohibit a person who has filed as a partisan candidate
in a primary election and who maintains such candidacy from
filing as an independent candidate in the general election
immediately following.
This interpretation of K.S.A. 1991 Supp. 25-202(c) is further
supported by the fact that a literal interpretation of the
statute could result in an unconstitutional restriction. An
example of the inequity is that, under a literal
interpretation, a person who filed one day following the
general election held in November, 1990, as a partisan
candidate for governor, and then withdrew such candidacy and
changed his party affiliation pursuant to K.S.A. 1991 Supp.
25-3304 to independent status in that same month, would be
precluded from filing as an independent candidate for governor

in a general election, to be conducted in November, 1994.
However, a person who remains an active member of a political
party but who did not file as a partisan candidate in the
primary election would be permitted to change his party
affiliation fourteen days prior to the primary election to be
conducted in August, 1994, and file as an independent
candidate for that office in the election to be conducted in
November, 1994. (The independent nomination petition would
need to filed prior to 12:00 noon on the Monday preceding the
first Tuesday of August preceding the general election.
K.S.A. 1991 Supp. 25-305, as amended by 1992 House Bill No.
3213.) Therefore, a person who has been an independent voter
for about four years would not be permitted to accept an
independent nomination while another person who has been
disaffiliated for a period of only a few weeks would be
permitted to accept the independent nomination. If the
literal interpretation of the statute was followed, it would
be difficult to accept that such an arrangement was an
essential instrument for maintaining the integrity of the
various routes to the ballot, and the provision would meet the
same fate as that provision reviewed in Kusper. Given the
court's obligation in interpreting statutes, it is our opinion
that the legislature in enacting K.S.A. 1991 Supp. 25-303(c),
as amended, intended to preclude a person who had filed as a
partisan candidate in a primary election and who maintains
such candidacy from filing as an independent candidate in the
general election immediately following.
3. Circulation of independent nomination petitions --
Subsection (e) of K.S.A. 1991 Supp. 25-303, as amended,
provides:
"The signatures to such nomination
petitions need not all be appended to one
paper, but each registered voter signing
an independent certificate of nomination
shall add to the signature such
petitioner's place of residence and post
office address. All signers of each
separate nomination petition shall reside
in the same county and election district
of the office sought. The affidavit of a
qualified elector who resides in such
county and election district or of the
candidate shall be appended to each
petition and shall contain at the end of
each set of documents carried by each

circulator, a verification, signed by the
circulator, to the effect that such
circulator personally witnessed the
signing of the petition by such person
whose name appears thereon. The person
making such affidavit shall be duly
registered to vote."
Prior to March 24, 1988, circulators and signers of
independent nomination petitions were required to reside
within the same precinct. However, due to concerns regarding
the constitutionality of such provision, the legislature
enacted 1988 Senate Bill No. 501, L. 1988, ch. 119, § 1.
Minutes, Senate Committee on Elections, January 20, 1988;
Minutes, House Committee on Elections, February 18, 1988.
"Several sections of S.B. 501 address [the 'precinct rule']
and change the precinct requirements to county or district
wide requirements." Testimony of Danton B. Rice, House
Committee on Elections, February 18, 1988. In determining
that the above cited provision is constitutional, the United
States District Court for the district of Kansas stated in
Merritt v. Graves, 702 F.Supp. 828 (D. Kan. 1988) that:
"Plaintiffs believe that the county of
residence requirement restricts
circulators to obtaining signatures only
in the county or election district where
they reside. This interpretation is
incorrect and is not mandated by the
language of the statute. K.S.A. 25-303
requires only that signers of nominating
petitions shall reside in the same county
and election district of the office
sought. This requirement does not
restrict circulators to their home county
and election district. The circulator may
seek signatures anywhere in the state, but
the signers must reside in the same county
and election district as the
circulators. This distinction is
critical since we are considering the
burdens placed on the plaintiffs by this
legislation. Thus, the statute does not
preclude the plaintiffs from obtaining
signatures at the state fair, at shopping
malls, or at other places where there are
large gatherings." Merritt, 702
F.Supp. at 833 (emphasis added).

Where a statute has been construed by the highest court having
jurisdiction to pass on it, such constructions are as much a
part of the statute as was written into it originally. Early
Detection Center, Inc. v. Wilson, 248 Kan. 869, 874 (1991).
All statutes are presumed to be enacted with full knowledge of
the existing condition of the law and with reference to it.
Id. Although the form of K.S.A. 25-303 (Ensley 1988) has
been modified since the court's determination in Merritt,
the provision interpreted in Merritt has remained
substantively unchanged. The legislature has adopted the
court's interpretation of the provision as its own.
Therefore, pursuant to K.S.A. 1991 Supp. 25-303, as amended, a
circulator of an independent nomination petition may circulate
the petition in areas outside the county and the election
district in which the circulator resides. However, those
persons signing the petition must reside in both the same
county and election district as does the circulator for the
signatures to be valid.
K.S.A. 1991 Supp. 25-303, as amended, permits either a
qualified elector who resides in the county and the election
district of the office sought or the candidate to sign the
affidavit that must be appended to each petition. In
construing statutes, the legislative intent must be determined
from a general consideration of the entire act. State ex rel
Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 719 (1990).
If possible, effect must be given to all provisions of the
act, and different provisions must be reconciled in a way that
makes them consistent, harmonious, and sensible. Id. In
construing statutes, qualifying words, phrases and clauses are
ordinarily confined to the last antecedent, or to the words
and phrases immediately preceding. Ruthrauff,
Administratrix v. Kensinger, 214 Kan. 185, 190 (1974). The
last antecedent, within the meaning of this rule, has been
regarded as the last word or clause which can be made an
antecedent without impairing the meaning of the sentence.
Id. at 190-91.
The statute specifically provides that "[t]he affidavit of a
qualified elector who resides in such county and election
district or of the candidate" is to be appended to each
petition. The qualification regarding residence in the same
county and election district as the office sought, through its
placement in the statute, is to apply only to the qualified
elector who is circulating a petition, not to the candidate
who is circulating a petition. The qualified elector may
collect signatures of persons residing within the same county
and election district, which restricts the qualified elector

to collecting signatures of persons residing within that area
intersected by the county and the election district in which
the circulator resides. The legislature did not intend for
this restriction to apply to a petition being circulated by
the candidate. Because the restriction appears in the statute
prior to the term authorizing the candidate to collect
signatures, the restriction does not apply to those signatures
collected by the candidate. Therefore, while a qualified
elector is restricted to collecting signatures of those
persons residing in that area intersected by the county and
the election district in which the qualified elector resides,
the candidate may collect signatures of persons residing
anywhere within the election district.
In review, no person who has declared and retains a political
party affiliation in accordance with K.S.A. 25-3301 is
eligible to accept an independent nomination for office. A
person who is affiliated with a political party may, 14 days
prior to the primary election, change the person's party or
voter affiliation. If the person timely changes to an
unaffiliated status, the person may accept an independent
nomination provided the independent nomination petitions are
properly filed pursuant to K.S.A. 1991 Supp. 25-305, as
amended. A person who files as a partisan candidate in the
primary election and who maintains such candidacy may not file
as an independent candidate in the general election
immediately following. A person who has filed as a partisan
candidate in a primary election may, after withdrawing such
candidacy and timely changing to an unaffiliated status, file
as an independent candidate in the general election. The
United States District Court for the district of Kansas has
determined that K.S.A. 1991 Supp. 25-303, as amended, requires
only that signers of independent nomination petitions reside
in the same county and election district of the office sought.
This requirement does not restrict circulators to their home
county and election district. The circulators may seek
signatures anywhere in the state, but the signers must reside
in the same county and election district as the circulators.
While a qualified elector who is circulating an independent
nomination petition is restricted to collecting signatures of
those persons residing in that area intersected by the county
and the election district in which the qualified elector

resides, the candidate may collect signatures of persons
residing anywhere within the election district.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard 6. Smith
Assistant Attorney General
RTS:JLM:RDS:jm