If Roger Marshall were to resign his U.S. Senate seat between now and Oct. 2, an untested Kansas law dictates that Republicans in the Legislature would control his successor and voters wouldn’t get to pick a senator until 2028.

Since 1927, Kansas governors have filled each U.S. Senate vacancy with an appointee of their choosing. But a piece of legislation that became law without Democratic Gov. Laura Kelly’s signature in 2025 gives lawmakers broad control over the replacement process by creating a committee that would short-list three Senate candidates for the governor to choose between.

A Kansas Reflector analysis from last week outlined a hypothetical scenario in which Marshall could accept a Trump administration appointment in the coming months, leading to the nullification of November’s highly anticipated Senate contest. In a statement, Kelly lambasted what she called a “ludicrous scheme to hijack political power” by circumventing voters.

In response to the speculation, Marshall’s chief of staff, Brent Robertson, said in a statement that “Senator Marshall will be running for reelection.”

State Sen. Mike Thompson, a Shawnee Republican and the architect of the 2025 bill, denied that Marshall’s office lobbied for it behind the scenes. But he acknowledged that rumors about the Trump loyalist’s political future prompted him to introduce the legislation.

“We had heard that there was potential that Sen. Marshall was going to be appointed to a position, but we weren’t a hundred percent sure,” Thompson said. “But we thought it would be time to review that process of filling a vacancy for that seat.”

Constitutional scrutiny

The Seventeenth Amendment was ratified in 1913, giving voters the right to directly elect U.S. senators rather than allowing state lawmakers to appoint them. The amendment also requires governors to play a role in the replacement process when vacancies occur.

Thompson characterized the Seventeenth Amendment as “a big mistake.” Senators would be more accountable to their constituents if voters didn’t choose them directly, he asserted.

“These big Senate seats have become national elections because there’s money coming in all over the place,” Thompson said, echoing talking points put forward by critics of the Republican-led effort to switch back to directly electing Kansas Supreme Court justices.

“That’s why the founders wanted the senators to be appointed,” Thompson said. “Because they were a lot more accountable to the state legislature, which is accountable to the people.”

Under Kansas law, Senate Bill 105, vacancies stemming from death, incapacitation or resignation between May 1 and Oct. 1 would result in appointees serving at least until an election in the next even-year cycle.

Travis Crum, a constitutional law professor at Washington University in St. Louis, called SB 105 “sloppily drafted.” Crum, who clerked for former U.S. Supreme Court Justices Anthony Kennedy and John Paul Stevens, said that in the event of a legal challenge, the law likely wouldn’t stand up to strict scrutiny.

“The state of Kansas cannot extend a U.S. senator’s term of office. Just period. Full stop,” Crum said. “They can’t do that.”

Any appointee to the Senate seat between now and the election could only legally serve out the final months of Marshall’s term under that interpretation.

“I think a court would look at this law and read it against the background principle that the U.S. Constitution gives U.S. senators six-year terms and Kansas law can’t change that,” Crum said.

Filling Senate vacancies

SB 105, which also applies to replacing state treasurers and state insurance commissioners, requires appointees to have been registered with the same political party as their predecessor for at least six years.

The legislation became law months after the deadly mid-air collision between a commercial airliner from Wichita and an Army Blackhawk helicopter over the Potomac River in Washington, D.C.

“It hit me like a ton of bricks, the last time I was on (Flight 5342), the flight, our direct Wichita, I was literally on that flight with Roger Marshall and Jerry Moran,” Kansas Senate President Ty Masterson said during a March 2025 segment of former Wichita lawmaker John Whitmer’s KNSS radio show.

“I thought, wait, if that would have been the plane that went down, Laura Kelly could appoint two Democrats,” Masterson said at the time.

Masterson, an Andover Republican and Trump’s pick for governor, did not respond to a request for comment.

Alexandra Middlewood, a political science professor at Wichita State University, called the election nullification scenario “far-fetched.” It could be weaponized against Republicans in their quest to reclaim the governor’s mansion after consecutive defeats at Kelly’s hands, she said.

“I don’t think I would go as far as to say that this is likely to happen,” Middlewood said.

“If something like this were to play out, and especially if Ty Masterson were the governor nominee, between this and him pushing for mid-cycle gerrymandering … there are definitely going to be accusations of election-rigging that come up against him,” she said.

Kelly derided the 2025 bill as a “partisan power grab,” but she opted not to veto it.

In a statement, the term-limited Democratic chief executive invoked the nearly 70-year-old “triple play” scandal that prompted Kansas voters to switch to a nominating commission for making state Supreme Court appointments in the 1950s.

She suggested that Republicans might try to use the new law to secure a Senate appointment for former Gov. Jeff Colyer, whom Trump passed over last month to endorse Masterson.

“It seems the only way any one of these three can win is by colluding to cheat,” Kelly said. “Kansans should be insulted that Ty Masterson, Jeff Colyer and Roger Marshall think they can get away with their ludicrous scheme to hijack political power for themselves. What they are doing is pathetic and downright embarrassing.”

GOP chair dismisses Marshall plot

Danedri Herbert, chair of the Kansas Republican Party, characterized SB 105 as a “straightforward law” about “routine statutory mechanics.” She denied any knowledge of a scheme to replace the first-term GOP senator.

“Sen. Marshall is seeking reelection. Period,” Herbert said, going on to criticize the Reflector’s assessment of SB 105 as “lazy, alarmist, and ethically bankrupt.”

Reflector Editor in Chief Sherman Smith defended the publication’s analysis of the bill, saying Herbert disputed the framing “because she can’t point to a factual error in any of our articles.”

“Notably, she doesn’t say what she thinks would happen if there were a vacancy,” Sherman said. “Does she agree with the nonpartisan bill revisor, who said during committee debate on the bill that if there were a vacancy after May this year, ‘the election to permanently fill the Senate vacancy would not occur until 2028’?

“(Kansas Reflector reporting) confirmed the language was added to the bill with the intention of a delaying an election under this very scenario,” Sherman said.

May 1 election cutoff

The Kansas Secretary of State’s office offered neutral testimony on SB 105 in committee. That testimony explicitly recommended adding a cutoff date after which time a replacement senator would serve for an extra two years before the next election.

“The timing language — ‘immediately following’ — is problematic as it would seem to require an election to fill a U.S. Senate vacancy that occurred even one day before an even-year general election. This would be unworkable,” wrote Clay Barker, an attorney with the Secretary of State office, in his testimony.

“That timing problem has been in the statute for a century,” Barker told lawmakers during the bill hearing. “Luckily, the four (senators) who resigned or died, it happened early enough in the process that that problem was not triggered.”

Secretary of State Scott Schwab is another of the candidates vying to emerge from a crowded Republican gubernatorial primary as the party’s nominee.

A spokesperson for the Secretary of State office said Schwab did not consult with Marshall or any other federal stakeholders before the agency provided testimony on SB 105. The office has not yet produced a full analysis of the law.

Spokesperson Thomas Treacy pushed back against the initial reporting on the bill.

“The misreading of the plain language of the law and suggestion that an election could be canceled undermines confidence in the integrity of the election process,” Treacy said in a statement.

The motion to add the May 1 cutoff date was ultimately made by Sen. Marci Francisco, a Lawrence Democrat who voted against the eventual bill that was enshrined into law.

“The difficult thing about the cutoff date — I mean, you know, I understand why we thought the cutoff date made sense,” Francisco said. “The problem here is if no one is challenging the incumbent, then would you have an election with just individuals from one side?”

Eleven Democratic candidates have filed for a chance to challenge Marshall in November.

“When you talk about what expenditures have been made on campaigns, a lot of people thought oh, here’s an opportunity to run against Roger Marshall,” Francisco said. “We have some concerns about what he’s been doing and where he’s been living. It would be awkward if all of that were for naught.”

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