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The success of the Populist Party in 1892 led to a series of major reforms to Kansas’s election law. Primarily, Kansas did away with the party ballot and elections administered by the parties.¹ Under the older system, which had prevailed in Kansas for all of its prior political history, the parties prepared and distributed their own ballots. In 1893, Kansas moved to a secret ballot administered and regulated by the state itself.² Amid these changes, the Populist Party sought to protect its hard-won gains by protecting fusion.

Voting in the United States throughout much of the nineteenth century was a highly public practice. Citizens with access to the franchise participated openly, often by voice in a public hall or courtyard.³ But as parties became more prominent in American politics, they began to administer elections themselves. This included substantial organization, transportation to polls, and the distribution and printing of ballots.⁴ Parties printed their own ballots consisting of strips of paper prepared and handed out to voters.⁵ Often, such strips were of distinct colors that were tailored to the respective party.⁶ Thus, when voters went to submit their ballots, it was readily apparent who the voter had chosen. This process served the function of helping voters—many of whom were illiterate—understand who their vote would go to. But under this public voting system, bribery and intimidation were also rampant.⁷

In order to counter such distortions of truly free citizen expression, states began to reform how they administered their elections at the end of the nineteenth century.⁸ Massachusetts was the first state to adopt the Australian Ballot System statewide, otherwise known as the “secret ballot.”⁹ During the 1880s, nearly a dozen states followed Massachusetts’ lead and adopted the use of the secret ballot.¹⁰ The implementation of the secret ballot required “an official ballot printed at public expense and distributed only by public election officers at the polling place.”¹¹ As a result, elections were publicly administered in accordance with uniform rules and regulations on the time and place of elections; the size, type, and design of official ballots; and the qualification criteria for candidate placement on ballots. Obviously, this gave those in charge of election administration new power, also potentially abused, to shape election results.

Kansas adopted the Australian Ballot System in 1893 as part of a larger election law package. The initial bill introduced in the Kansas Senate provided “for the printing and distribution of ballots at the public expense for nominating of candidates for public office, to regulate the manner of holding elections, and to enforce the secrecy of the ballot, and to provide punishment for the violation of this act.”¹² In addition to its Australian Ballot provisions, it included a host of other technical and administrative details regulating elections in Kansas.¹³

The provisions included the role of “judges” of the election.¹⁴ In essence, these were local party representatives whose job was to oversee the proper functioning of the election law. In Kansas, as in other states, election laws allowed competing parties to have representation among the judges, although no more than two could be from the same political party.¹⁵ The selection of these judges prompted an amendment to the pending legislation by Representative J.F. Greenlee, a Republican from Hutchison.¹⁶ Greenlee suggested the following language, which became part of the law:

“That when two or more parties holding political views diametrically opposed to each other unite and vote on the same ticket, they shall be deemed and held to constitute one party under the provisions of this act.”¹⁷

The amendment reflects several issues with fusion as practiced in Kansas. The amendment expressly authorized what had been a prominent feature of Kansas elections since statehood. It also indicated that even Republican partisans who would go on to embrace anti-fusion laws years later recognized the inherent legality of fusion. And the law made it impossible for Populists and Democrats to constitute all of the three judges of election in a particular location. Ultimately, the 1893 election law confirmed that political parties in Kansas possessed the legal right to cross-nominate candidates, and such candidates could appear in multiple places on the official ballot.¹⁸

The public reacted positively to election reforms. The newspaper the Weekly Star and Kansan wrote:

“A great deal has been said about the provisions of this law depriving a party that has fused with another at the preceding election of any representation upon election boards. We can see nothing objectionable about this regulation as to judges and clerks, in which there is no allusion to fusion….Of cours[e], in case of a complete fusion between two parties they could only count as one under this law; but where[,] as in this county last fall, the fusion is only partial and each party to it has separate tickets [in the] field, they will preserve their identity, even though most of their candidates, or all but one, are the same….The law itself is a good one, and its results must prove beneficial…�ĝ¹⁹

While the 1893 law considered two parties as one for purposes of selecting judges of election, it continued to preserve the legal right of Kansas parties to cooperate using fusion cross-endorsements. The law, even if in a back-handed manner, permitted fusion as an acceptable political strategy that was both election-specific and permitted different combinations for different elections.

The 1893 law contained several additional protections for fusion, thereby expanding its democratic impact. Section 6, Chapter 78 of Session Laws of 1893 allowed parties to identify themselves using up to five words,²⁰ allowing for combinations of parties to be listed on official ballots. Additionally, Section 14 of the law, which described ballot forms, allowed parties to write their nominees under their recognized name or designation—even if there was no official label or title for the party.²¹ Moreover, fused candidates could be listed under both of the parties they represented.²² Accordingly, the 1983 law afforded voters, as well as candidates, greater electoral choice and more accurately reflected political preferences.