TOPEKA — A Republican-conceived law usurping Democratic Gov. Laura Kelly’s discretion when filling vacancies in certain Kansas statewide elective offices could complicate the competitive race for U.S. Senate.
Candidates and political observers wonder whether Kansas Republicans could attempt to avoid holding an election for U.S. Senate this year by having the incumbent, Republican Roger Marshall, resign from office to take a position with President Donald Trump’s administration. The power play would raise constitutional questions.
The catalyst for this fear is a 2025 law requiring vacancies for U.S. Senate, state treasurer and state insurance commissioner to be filled by Kansas governors by choosing from a list of finalists endorsed by the full Legislature or a 12-person GOP-controlled legislative committee. A governor of Kansas in the past could immediately and unilaterally choose a person to temporarily fill these jobs pending an election, but the new law limited the governor’s options to members of the former officeholder’s party.
In addition, the same state law says if the vacancy were created after May 1 in an even-number year, such as 2026, the appointed replacement wouldn’t go before voters in an election until “two years following the year in which such vacancy occurs.” A simple reading of this Kansas statute — in isolation from the U.S. Constitution — suggests appointees chosen to fill these jobs this fall would avoid facing voters until 2028.
“This is certainly not the norm in the United States,” said Bob Beatty, a political science professor at Washburn University. “Waiting two years is pretty extreme.”
Despite confusing text in the 2025 Kansas law, the U.S. Constitution’s 17th Amendment, ratified in 1913, grants states the right to have temporary officials hold vacant U.S. Senate seats until an election could be held to determine who served out the unexpired term. The constitutional amendment wouldn’t permit states to artificially extend a U.S. Senate term beyond six years regardless of the number of people who were elected, appointed or resigned from the position during the six-year window.
This constitutional intent wouldn’t prohibit an individual or organization from raising legal challenges that portray Senate Bill 105 as a clever way of delaying an election amid a senator’s resignation.
Republican and Democratic strategists and candidates in Kansas have been weighing the possibility of Marshall prevailing in his August reelection primary and resigning a month or so later after securing a coveted appointment in the Trump administration. For the first time, under this scenario, Kelly and the Legislature would be responsible for implementing the 2025 law.
Without changing state statute on U.S. Senate vacancies, Marshall’s departure would have enabled Kelly to appoint a Democrat to his seat and weaken the GOP’s grip on the U.S. Senate.
Former Republican Gov. Jeff Colyer dropped out of the GOP’s gubernatorial race June 1 after Trump attempted to break the GOP candidate logjam by endorsing Senate President Ty Masterson for governor. If Colyer were to be nominated to a vacated U.S. Senate seat by Republicans in the Legislature and if he was chosen from among three finalists by the Democratic governor, the new state law could be interpreted to mean Colyer could avoid having his name on a ballot until November 2028.
“This would be helpful for Republicans,” said Beatty, who expected GOP candidates to suffer at the ballot box from Trump’s sagging approval rating. “You get two years for the handpicked person to raise money and avoid an off-year election.”
