Kansas Attorney General Opinion 1992-066

ROBERT T. STEPHAN
ATTORNEY GENERAL
May 18, 1992
ATTORNEY GENERAL OPINION NO. 92 - 66
John R. Wine, Jr.
General Counsel
Secretary of State's Office
2nd Floor, State Capitol
Topeka, Kansas 66612-1594
Re: Elections--Independent and Other Nomination
Certificates; Terms of Office; Filling
Vacancies--Independent Nominations; Petitions;
Candidates for President and Vice-President;
Substitution of Vice-Presidential Candidate
Synopsis: Any person who has been nominated for the office of
vice-president may cause such person's name to be
withdrawn from nomination by filing a request in
writing with the secretary of state. A vacancy in
a party nomination for vice-president may be filled
by the party committee of the state provided the
vacancy occurs after a primary election. Because
Kansas statutes provide for substitution of party
nominations for vice-president, a procedure must be
made available for substitution of independent
nominations for vice-president. Cited herein:
K.S.A. 1991 Supp. 25-306b; K.S.A. 25-615; K.S.A.
1991 Supp. 25-616; K.S.A. 25-2501; 25-2503;
25 - 2504; 25-3901; K.S.A. 1991 Supp. 25-3905; L.
1968, ch. 406, SS 2, 7; L. 1981, ch. 165, § 6;
L. 1984, ch. 139, §S 3, 4; Kan. Const., Bill of
Rights, §S 1, 2; U.S. Const., Amend. XII; U.S.
Const., Amend. XIV.

Dear Mr. Wine:
As general counsel for the secretary of state's office, you
request our opinion regarding whether the person named as
vice-presidential candidate on an independent nomination
petition for president and vice-president may be replaced so
as to permit a different name to appear on the general
election ballot.
Your request is brought about due to the expected candidacy of
Mr. Ross Perot for president. Mr. Perot is seeking to
be placed on the general election ballot as an independent
candidate for president. The nomination petitions being
circulated in Kansas on behalf of Mr. Perot's candidacy
contain the name of James B. Stockdale for vice-president.
Mr. Perot has indicated that Mr. Stockdale is serving only
as an interim or stand-in vice-presidential candidate and is
not intended to appear on the general election ballot as
candidate for vice-president. The individual who will
actually serve as Mr. Perot's running mate will be named at
a later date.
The role of the presidential electoral college has been
modified as the purpose for its establishment has diminished.
However, state statute appears to fail to accommodate the
changing role of the presidential electoral college. Pursuant
to the twelfth amendment to the United States constitution,
the president and vice-president are selected by members of
the presidential electoral college. As acknowledged by the
Kansas Supreme Court, "[i]n a legal sense the people of this
State vote for no candidate for President or Vice President
[sic], that duty being delegated to 10 citizens who are
authorized to use their own judgment as to the proper eligible
persons to fill those high offices." Breidenthal v.
Edwards, 57 Kan. 332, 339 (1896). The changing role of the
presidential elector is noted by the court in The State ex
rel. v. Pettijohn, 107 Kan. 447 (1920).
"As is well understood, a presidential
elector was originally expected to
exercise his own judgment in casting his
vote as a member of the electoral
college. He is now regarded as a mere
representative of his party, selected to
voice its choice in the matter. The
voting for a list of presidential electors
is with the vast majority a mere form by

which they seek to give expression to
their preference for the offices of
president and vice-president, being
utterly indifferent as to the persons
through whom legal effect is to be given
to their action." Id. at 450.
The legislature has adopted this view as its own, and through
L. 1981, ch. 165, § 6 and L. 1984, ch. 139, SS 3, 4
deleted the requirement that the names of the presidential
electors be printed on the official general ballot. K.S.A.
25-615; K.S.A. 1991 Supp. 25-616. However, state statute
defines national election as "the election of members of the
United States house of representatives, members of the United
States senate or members of the United States presidential
electoral college," K.S.A. 25-2503, and national office or
national officer as "the office or members of the United
States house of representatives, members of the United States
senate and members of the United States presidential electoral
college." K.S.A. 25-2504. The definitions were included in
an act which consisted of 146 sections. The provisions of the
act clearly provide a procedure to be followed in the
withdrawal and replacement of candidates for members of the
electoral college. However, a review of legislative history
is necessary to determine whether state statute provides for
the withdrawal and replacement of candidates for president and
vice-president.
K.S.A. 25-2501 states "[a]s used in this act, the words and
phrases set out in K.S.A. 25-2502 to 25-2507 shall have the
meanings respectively ascribed to them unless the context
requires a different meaning." The definitions were set forth
in sections two through seven of L. 1968, ch. 406, and were
intended to apply to those statutes enacted in L. 1968, ch.
406.
K.S.A. 1991 Supp. 25-306b provides that "[a]ny person who
has been nominated by any means whatsoever for any national,
state, county or township office may cause such person's name
to be withdrawn from nomination. . . ." K.S.A. 1991 Supp.
25-306b was originally enacted in 1970 and has been amended
twice. At no time has the statute been enacted in the same
legislative act as the definitions set forth in K.S.A. 25-2501
et seq. Therefore, in construing the statute, words in
common usage should be given their natural and ordinary
meaning. See Spor v. Presta Oil Co. Inc., 14
Kan.App.2d 696, 698 (1990). It is a common perception that
the offices of president and vice-president, as executive

offices of the federal government, constitute national
offices. Therefore, any person who has been nominated for the
office of vice-president may cause such person's name to be
withdrawn from nomination by filing a request in writing with
the secretary of state. The request must be filed within the
time provided in K.S.A. 1991 Supp. 25-306b.
K.S.A. 1991 Supp. 25-3905 provides in part that "[w]hen a
vacancy occurs after a primary election in a party candidacy,
such vacancy shall be filled by the party committee of the
congressional district, county or state, as the case may
be...." Party candidacy is defined in K.S.A. 25-3901 as "a
candidate of a political party for a party nomination at a
primary election or the party candidate at a general
election." Therefore, a vacancy which occurs when a person
who has received a party nomination for vice-president and
subsequently causes such nomination to be withdrawn pursuant
to K.S.A. 1991 Supp. 25-306b may be filled by the party
committee of the state provided the vacancy occurs after a
primary election. However, no procedure is provided for
filling a vacancy occurring in the independent nomination of
vice-president.
A similar situation was addressed by the court in Anderson v.
Firestone, 499 F.Supp. 1027 (N.D. Fla. 1980). The issue
before the court in Anderson "is whether the plaintiffs
[independent candidates for president and vice-president and
residents signing the independent nomination petitions] are
denied equal protection of the laws by the State's failure to
provide the same or similar mechanism for filling the vacancy
created by the withdrawal of an independent vice-presidential
nominee as it provided in Section 110.111(3), Florida
Statutes, to party candidates." Id. at 1029. The court
determined that the failure of the state to provide for
withdrawal from the ballot of the name of the surrogate and
substitution on the ballot of the independent vice-president
running mate undermines the integrity of the ballot and denies
plaintiffs the equal protection of the laws.
"That denial is manifested by these
results: Florida voters who successfully
petitioned to place the Anderson ticket on
the ballot will be denied the right to
vote for that ticket; grave doubt is cast
over the certified independent electors'
ability to fulfill their legal obligation
to vote in the electoral college for John
B. Anderson and Patrick J. Lucey;

Plaintiff Lucey, the designated running
mate, is denied access to the ballot; and
Plaintiff Anderson is denied the right to
have his actual and designated running
mate's name appear with Anderson's name on
the ballot.
"By refusing to protect the State's
interest through means which are less
burdensome to these plaintiffs, defendant
State officials have created a situation
which requires that provision be made for
withdrawal of Milton Eisenhower's name
from the November 4, 1980 general election
ballot and substitution of the name of
Patrick J. Lucey thereon. Only by such
withdrawal and substitution can the
defendants avoid an impermissible
infringement of the constitutionally
protected rights of these plaintiffs."
Id. at 1030-31.
Similar short-comings occur under Kansas statutes. Because
Kansas statutes provide for substitution of party nominations
for vice-president, a procedure must be made available for
substitution of independent nominations for vice-president.
To do otherwise would result in violations of the fourteenth
amendment of the United States constitution and sections one
and two of the bill of rights of the Kansas constitution.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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