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The Kansas Senate Race Is Just Getting Weirder

Kansas Flag

As I noted earlier today, Chad Taylor, the putative Democratic nominee for Senate in Kansas announced his intention to drop out of the race, setting up the potential of a two way race between Republican Senator Pat Roberts and upstart independent candidate Greg Orman. When he announced his resignation yesterday, Taylor relied on a Kansas statute that allows a candidate to remove him or herself from the ballot provided proper notice is given to the Secretary of State before the deadline. Later today, Kris Kobach, the Republican Secretary of State, announced that Taylor’s notice was not legally sufficient and that his name would stay on the ballot:

In a boost for Republicans and Kansas GOP Sen. Pat Roberts, the Democrat who attempted Wednesday to drop out of the three-way Senate race must remain on the ballot, the state’s top election official ruled Thursday.

Secretary of State Kris Kobach, a Republican who endorsed Roberts during the primary, argued that Democratic nominee Chad Taylor failed to declare that he would be unable to perform the job if elected, a requirement of Kansas law.

Taylor’s withdrawal letter cited that law but didn’t explicitly reference any reason for his decision.

“The law is quite clear on this,” said Kobach. “Those words have to be given meaning, and that is what we’re doing.”

The decision could undermine efforts to unseat Roberts and potentially rewrite the narrative of the 2014 midterms. It’s certain to anger Democrats, who were hopeful that their candidate’s exit from the race would clear a path for independent Greg Orman to challenge Roberts one on one. Recent polls showed Orman ahead of Roberts in a head-to-head race.

It’s unclear whether Democrats will challenge the decision. The state party has declined repeated requests for comment.

In a statement, Taylor argued he was misled by a senior Kobach aide, Brad Bryant, who convinced him his brief withdrawal letter met the legal requirements to end his campaign. He said he intends to challenge the ruling, although it’s unclear if a challenge would be heard in court of by a state Board of Objections.

“Upon confirming that my letter would remove my name from the ballot, I presented identification, signed the notary ledger, and signed the letter before a Secretary of State employee notarized it,” Taylor said Thursday. “I again confirmed with Mr. Bryant that this notarized letter removed my name from the ballot. He again said ‘Yes.’ My candidacy in this race was terminated yesterday.”

But Kobach told POLITICO that Bryant “did not tell [Taylor]that his filing was sufficient.”

“Mr. Taylor’s an attorney and it’s interesting — many other people have complied with this law since it was applied in 1997,” he said. “Mr. Taylor, an attorney, either didn’t read the law or didn’t underastnd the law.”

He also insisted that politics played no role in keeping Taylor on the ballot — he called it a unanimous agreement among attorneys in his office and in the attorney general’s office and said it would’ve been the same if Taylor were a Republican candidate. He added that any challenge by Democrats must be resolved quickly for the state to print ballots by a Sept. 20 legal deadline.

“They will try to make political hay of this. The law really is clear,” he said.

The statute that controls this issue is KSA 25-306b(b), which states as follows:

Any person who has been nominated by any means for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds. Any such request shall be filed with the secretary of state in the case of national and state offices and with the county election officer in the case of county and township offices. Except as provided in subsection (d), in the case of national and state offices, any such request shall be filed within seven days, including Saturdays, Sundays and holidays, after the meeting of the state board of canvassers for the final canvass of primary election provided for in K.S.A. 25-3205, and amendments thereto. Except as provided in subsection (d), in the case of county and township offices, any such request shall be filed within 10 days after the meeting of the county board of canvassers to canvass the primary election as provided in K.S.A. 25-3104, and amendments thereto. No name withdrawn as provided in this section shall be printed on the ballots for such office for the general election.

Here’s a copy of the letter that Taylor delivered to the Secretary of State:

The issue here, of course, is that Taylor’s letter doesn’t specifically declare that they are “incapable of fulfilling the duties of the office if elected. Kobach’s argument is that since the letter doesn’t include language to that effect it is not sufficient under the law. One potential counter argument to that statement is that the statute does not specifically say that the notice to the Secretary of State must specifically state that the person in question is incapable of fulfilling the duties of office. Taylor, meanwhile appears to be making an estoppel argument in that he is saying that a representative of the office told him that his letter was sufficient and that he relief upon that argument in proceeding forward with the letter as is. Of course, it’s common knowledge that government employees are not supposed to be giving people who use government offices legal advice, so I’m not certain that a court would hold that Taylor was justified in relying on these alleged comments from Kobach’s deputy. In any case, Taylor is saying that he intends to fight Kobach’s decision so it would appear that this matter isn’t completely resolved.

On some level, I have to wonder if keeping Taylor’s name on the ballot will really have as big an impact on the race as Republicans seem to think. If Taylor doesn’t campaign and endorses Ordman, and if state and national Democrats do the same then it seems likely that most of the people who were going to vote for Taylor will end up switching to Orman anyway. So, while it still seems unlikely that a Republican can actually lose a Senate race in Kansas, something that hasn’t happened for about eighty years at this point, Pat Roberts may not be out of the woods quite yet. This is likely the reason that the national Republican Party has essentially taken over Roberts’s campaign, in no small part because Roberts himself hasn’t seemed to be very interested in campaigning since he won the primary last month. With the challenge from Orman now potentially becoming far more serious, the national GOP obviously sees this is as a problem.

So, it remains unclear how all of this will pan out, but it does appear as though Kansas is going to be the unlikely sight of an interesting campaign in 2014.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. edmondo says:

    who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing,

    Isn’t that like admitting to the entire state of Kansas that you are dumber than Ted Cruz? No thank you.

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    Like or Dislike: Thumb up 3 Thumb down 6

  2. Davebo says:

    On some level, I have to wonder if keeping Taylor’s name on the ballot will really have as big an impact on the race as Republicans seem to think.

    Seriously, you have to wonder?

    Not everyone in Kansas keeps up with the hourly updates of the election. Most just show up and pull a lever often based purely on party affiliation.

    I on the other hand really don’t have to wonder why you didn’t address the obvious political motivation for the move by Kris Kobach which would appear blatantly obvious to anyone who didn’t “have to wonder how keeping Taylor’s name on the ballot would have an impact”.

    It’s politics as usual and if you have to wonder about that perhaps politics is a subject you should
    avoid opining on.

    There’s always the caption contest.

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  3. Just 'nutha' Ig'rant Cracker says:

    @edmondo: I see your point, but is it possible that citing the statute in question creates a statement of inability to serve? A judge, or an administrative law clerk might rule either way.

    As to Taylor being a lawyer, this situation is an example of why lawyers shouldn’t practice law on themselves in the same vein a surgeons not performing self-surgery.

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  4. Jenos Idanian #13 says:

    This sounds like karmic payback for the 2002 New Jersey Senate race bullcrap, where the Democrats argued that “our guy just got indicted for corruption” constituted giving the Republican candidate an unfair advantage and should allow them to replace Torricielli as the nominee after the official deadline for changing candidates had passed.

    That said, it looks like Mr. Bryant tried to pull a fast one to help the GOP candidate. Stupid guy — only Democrats are allowed to weaponize the legal system for political gains. See the endless stream of bogus ethics complaints against Sarah Palin, the secret, paramilitary-style criminal investigations into Scott Walker, and the indictment of Rick Perry, just to name a few.

    Here’s a good article that gives even more details and more examples.

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  5. J-Dub says:

    I’m sure if Taylor stays on the ballot against his wishes and somehow wins the Republicans would then use his “insufficient” letter to say he wasn’t eligible.

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    Like or Dislike: Thumb up 12 Thumb down 1

  6. stonetools says:

    @Jenos Idanian #13:

    First of all, Perry was indicted by a Republican prosecutor and grand jury so that’s one obvious lie.
    AS for the other investigations, well, they’re investigations. The Republican governors try to spin them as politically motivated but there seems to be SOMETHING to these investigations. I for one remember the conservative pundits who confidently predicted the Mcdonell investigations would come to nothing. How did that work out for you, Jenos?

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  7. Tony W says:

    The way I read the statute the declaration that he is unable to perform the duties does not have to happen within the written note to the SoS. The sentence is constructed poorly, but that declaration could be verbally over the counter, for example.

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  8. C. Clavin says:

    I wonder how far up the Republican Secretary of State’s butt the National Republican Senate Committee had to crawl in order to force him to make a fool of himself like this?
    The letter states “pursuant to the statute”…but didn’t write it out?
    Not even Indiana Jones anagrams are that stupid.

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    Like or Dislike: Thumb up 9 Thumb down 4

  9. EddieInCA says:

    A question for the lawyers here on OTB:

    Wouldn’t the very nature of saying “I don’t want to be on the ballot”, by itself, be proof that he’s incapable of fulfilling the duties?

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    Like or Dislike: Thumb up 11 Thumb down 1

  10. PD Shaw says:

    @EddieInCA: The paragraph of the statute before the one quoted above states that nobody nominated for office can withdraw after the primaries, except in a few circumstances. I think this is clearly written as a law to enforce the party primary system, and provide a limited release valve in extraordinary circumstances. He had a chance to avoid the nomination before the primary elections if he didn’t want it.

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  11. Paul L. says:

    @stonetools:
    Sen. Ted Stevens was indicted tried and convicted by the Bush DOJ.and a Republican judge.
    So we should just overlook prosecutorial misconduct of hiding and manufacturing evidence..

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  12. James in Silverdale, WA says:

    There’s a case to be made that it really doesn’t matter which names appear on the ballot. Robert’s’ polling is the real problem, being unable to get above 37% in a three-way match-up. Should Taylor remain on the ballot, there’s really too much time to get that point across to Democrats: an election in a deep red state that now matters. The GOP jetting in the capo to take over says it all.

    Add Brownback’s woes and maybe we can soon stop asking WTF’s wrong with Kansas.

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  13. Pinky says:

    You’ve forgotten about the catch, and that’s Catch 22: the inability to provide a document saying that you’re unable to perform the duties is a demonstration of your inability to perform the duties.

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  14. Louis DePasquale says:

    The other question that needs to be asked is one of collusion. Mr. Taylor took a meeting with Sen. Claire Mccaskill prior to announcing his decision. Neither of them will discuss publicly what was discussed at the meeting. How much pressure did the Dem leadership place on Mr. Taylor to convince him to drop out of the race? Did he meet with Mr. Orman prior to his decision? He won his primary less than 30 days before deciding to drop out. If he felt he could meet the requirements of the office 30 days earlier what changed? Questions need to be answered under oath before he is taken off the ballet.

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  15. pylon says:

    @Louis DePasquale: So what if (a) Dems pressured him; or (b) Orman asked him? If he felt, after such meetings, that it was for the good of his party or the country that another person run against the incumbent, so what?

    And I didn’t know he danced.

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  16. rudderpedals says:

    Pfffft We’ll send Katherine Harris and Jeb out there Kansas to show you guys how it’s done but someone other than Kobach (the same putz who wanted to go fishing in patient medical records) has to promise to keep them there.

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    Like or Dislike: Thumb up 3 Thumb down 1

  17. Pinky says:

    “Any person who has been nominated by any means for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds.”

    One potential counter argument to that statement is that the statute does not specifically say that the notice to the Secretary of State must specifically state that the person in question is incapable of fulfilling the duties of office.

    That reminds me of Michael Scott shouting “I DECLARE BANKRUPTCY!”. I’d assume that the declaration would have to be a legal one, not a declarative sentence.

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  18. pylon says:

    How close to the deadline was (a) the written notice; and (b) the information from Kobach saying it wasn’t sufficient?

    In other words, did they wait until the deadline passed to say “not good enough”?

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  19. Pinky says:

    @pylon: Well, the document was dated 9/3/14, and this story came out on 9/4/14. I assume that he couldn’t just refile later that day, or this’d be a really stupid story, so that means that 9/3/14 was the last day to file. If they sat on their decision, they couldn’t have sat on it for more than a few work hours.

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  20. pylon says:

    @Pinky: fair enough – i just didn’t know.

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  21. Paul L. says:
  22. Pinky says:

    @pylon: That’s fine; that’s how normal, non-internet people communicate. What I’ve been wondering about are the “many” other people who’ve done this. I haven’t seen anything about them.

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  23. Grewgills says:

    @Pinky:
    According to the statute all one has to do is declare that they are incapable of fulfilling the duties of office if elected. The statute is short and it doesn’t state that a reason has to be given, just the statement that they are incapable. Barring some language in a connected statute that says evidence must be shown that proves the party is incapable of fulfilling the duties of office, Kobach is playing politics and not faithfully fulfilling his duties as Sec of State.

    That reminds me of Michael Scott shouting “I DECLARE BANKRUPTCY!”. I’d assume that the declaration would have to be a legal one, not a declarative sentence.

    Bankruptcy laws are quite specific about what evidence must be shown, this statute, not so much.

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    Like or Dislike: Thumb up 3 Thumb down 2

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