Topeka Unaffiliated voters will not be allowed to cast ballots in Kansas' Republican primary on Aug. 3, following a judge's decision Wednesday that the state party chairman "dangerously overstepped his bounds" by declaring it open.
"Defending the party's constitution and bylaws necessarily required defending the closed primary," Shawnee County District Judge Charles Andrews said in a 12-page order. "Therefore, the chairman's ill-advised decision was completely without merit."
Kansas law has mandated closed Republican and Democratic primaries since 1908. The state's Democratic executive committee and state GOP Chairman Dennis Jones decided to open their parties' primaries after Secretary of State Ron Thornburgh concluded the parties, not the state, must decide who participates. Thornburgh was reacting to an April federal appeals court decision.
Susan Estes, the GOP's 4th Congressional District chairwoman, sued both Jones and Thornburgh, arguing that Jones did not have the power under the party's constitution to set such a policy.
Andrews' decision does not affect the Democratic primary.
"This is similar to professional baseball's decision to have a designated hitter in one league and not in the other," Andrews wrote. "Kansas voters will survive this ordeal, much like baseball fans across America."
Registered voters can obtain advance ballots from county election officials starting July 14. Thornburgh said Wednesday that with the two parties having different rules, "We have a much greater task in educating voters."
Estes, of course, was pleased with the judge's decision. "I'm grateful that a regular person like me can walk into court and be heard," she said.
Scott Poor, the state GOP's executive director, expressed disappointment. He said Jones had not decided whether he would appeal.
"We have 400,000 voters who don't have the right to vote in August," Poor said. "We were trying to open the door for them."
About 716,000 of the state's 1.54 million registered voters are Republicans, and an additional 422,000 are Democrats. Most of the rest are unaffiliated.
Many Republicans and some political scientists had speculated that opening the GOP primary to unaffiliated voters would hurt conservative candidates and help moderate ones.
But Rep. Jeff Goering, a Wichita attorney who represented Estes, said Jones' power was the issue -- not his intent, nor which candidates Jones' decision might help.
"At the end of the day, I'm just pleased the court is requiring the chairman to follow the rules and regulations of the party," Goering said in a telephone interview.
In his decision, Andrews said the party's constitution assumed the GOP primary would be closed, although it does not explicitly say so. The judge called Jones' decision "ill-advised" and "completely without merit."
"The chairman proceeded in clear violation of the very rules he was elected to protect. This was a thinly veiled attempt to bypass the party members he serves," Andrews wrote. "Chairman Jones dangerously overstepped his bounds by straining the very essence of the party's constitution and bylaws."
The judge said that because Jones' decision was "null and void," the Republican Party was not at odds with the state law requiring a closed primary -- making a ruling on the law's constitutionality unnecessary.
The case is Susan Estes v. Ron Thornburgh, Kansas secretary of state, et al., No. 04-c-000813.