Kansas Supreme Court Rules Democratic Candidate’s Name Must Be Removed From Senate Ballot

The Kansas Supreme Court may have just upended the battle for control of the U.S. Senate

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In a decision that will likely have huge implications for the Senate race in Kansas and potentially the battle for control of the Senate itself, the Kansas Supreme Court handed down a ruling late today that Democratic Senate nominee Chad Taylor’s name should be removed from the ballot as he requested in the letter he sent to the Secretary of State’s office earlier this month:

Democrat Chad Taylor is off the ballot for the U.S. Senate in Kansas.

The Kansas Supreme Court ruled late Thursday afternoon that Taylor’s letter to the Secretary of State’s Office met the requirements for him to withdraw.

Secretary of State Kris Kobach had said Taylor had failed to declare that he was incapable of serving as required by Kansas statute and had ruled that his name would remain on the ballot.

Taylor took the unprecedented step of suing to have his name removed, filing an emergency petition with the Kansas Supreme Court. The court heard the case Tuesday and several justices voiced skepticism of Kobach’s application of the law.

In response to the ruling, Kobach said a separate statute protects the “rights of Kansas Democrats” to have a replacement candidate. He said he would move the mailing date for absentee ballots to Sept. 27 and that the chair of the Democratic Party has been informed she has eight days to select a replacement candidate.

The Kansas Republican Party had raised objections to Taylor’s withdrawal and alleged that it was the result of a backroom deal cut by Democrats to help boost independent Greg Orman’s candidacy against Republican incumbent U.S. Sen. Pat Roberts in a year that control of the Senate appears up for grabs.

Democrats, on the other hand, accused Kobach, who sits on Roberts’ honorary campaign committee, of twisting the statute in order to protect Roberts’ reelection.

Rick Hasan shares his thoughts on the decision:

1. This is a unanimous, per curiam (unsigned) opinion from the Court holding that Democrat Chad Taylor’s name will not be on the ballot in the Kansas Senate race. This has political implications, as it will likely cause more Democrats to vote for independent Greg Orman instead of incumbent Republican Pat Roberts. It puts the seat, and perhaps the Senate, up for grabs. But there’s a wrinkle. There is still possible Court action now to force Democrats to name a new candidate to replace Taylor on the ballot.

2. The Court took the narrowest path to reach this decision.  Despite many arguments offered by the parties,  the court took a very narrow textual approach. It found that Taylor’s letter complied with the literal requirement of the statute, because he said he was withdrawing “pursuant to” the relevant section. The court concluded he “incorporated by reference” the standard that he was incapable of serving.

3. In ruling this way, the court avoided a messy factual dispute over whether Taylor was promised by election officials that his letter was sufficient.  The court also sidestepped some uncertain legislative history as well as uncertain application of the doctrine of substantial compliance. It was about as simple and straightforward a way to decide the case as one could imagine. But…

4. If the court was going to issue such a simple, straightforward unanimous ruling, why did it take so long?  No doubt more was going on behind the scenes than this simple ruling.  We probably will never know what was going on in judicial chambers. A cynic suggested to me the court delayed so much so there would be no time to litigate over whether Democrats have to name a replacement on the ballot.

5. The big unanswered question is what happens to the other statute which appears to require Democrats to replace a withdrawn candidate on the ballot. The court totally sidesteps the issue, noting that “Nor do we need to act on Kobach’s allegation that a ruling for Taylor would require the Kansas Democratic Party State Committee to name his replacement nominee per K.S.A. 25-3905. The Kansas Democratic Party is not a party to this original action, and this court does not issue advisory opinions.”

6. This leaves the ball in Kobach’s court. He can sue the Democrats to try to force them to name someone. But how could he sue and have Democrats hold a convention within the day before ballots are to be printed.  It will be hard for Kobach to say the printing can wait.  In this way we have the ideal situation for the Democrats, what I’ve termed the “Reverse Torricelli:” Democrats get to have the candidate they want removed from the ballot without having to name a replacement. It is sure to infuriate Republicans.

As  I noted when the Court heard argument in this case on Tuesday, the strong implication from those who followed the oral argument was the the Court found the arguments that were being made on behalf of Secretary of State Kris Kobach to be unpersuasive, and that they seem inclined to allow Taylor to be removed from the ballot as he requested. While it’s often foolish to base predictions about how a Court will decide based on oral argument, this is one of those times where oral argument was a perfect guide to the direction in which the Court was leading. Instead of giving the hypertechnical reading to the statute that Kobach’s lawyers were advocating, the Justices instead the Justices appear to have taken a very narrow reading of the statute and held that Taylor did in fact comply with its terms. As I noted in the past, and as several of the Justices apparently noted in oral argument on Tuesday, the statute does not specifically require that the person wishing to withdraw from the ballot must set forth the reason that they don’t believe they can fulfill the duties of the office they are running for, or even that they have to say that in the letter. Given that kind of a reading of the statute, the court could find that the notice Taylor gave was sufficient without, as Hasan notes, having to deal with the very messy issue of what may have been represented to him by representatives of Kobach’s office, an inquiry made more difficult by the fact that Kobach is openly backing Taylor’s former opponent in the race Senator Pat Roberts.

As the linked article above notes, Kobach appears to be taking the position that Kansas Democrats are statutorily required to name a replacement candidate to fill Taylor’s place on the ballot. Even if this is the case, it’s unclear how the party could accomplish that task even within the nine day extended time period that he has created by delaying the printing of ballots. One interesting possibility, of course, would be for the Kansas Democratic Party to give the nomination to Greg Orman, who is also running as an Independent. However, I am not certain if that is permitted under Kansas election law, and such a move could potentially blunt the message the Orman is trying to send the voters that he is an independent voice not beholden to either Republicans or Democrats.

In any case, there seems to be no question that this is bad news for Senator Roberts. Since Taylor’s announcement, two polls have shown Roberts losing to Orman even when Taylor’s name was still on the ballot, and a third from Fox News showed him with only a paltry two point lead with Taylor on the ballot and losing if voters were asked to choose only between Orman and Roberts. At the very least, this development is going to force Republicans and third party conservative groups to put far more resources into Kansas than they had planned to, which could have an impact in other states where they are trying to flip a Democratic seat. Depending on how close the final battle is, this race in Kansas, and today’s Supreme Court decision, could be what decides who control’s the Senate.

Here’s the opinion:

Chad Taylor v. Kris Kobach by Doug Mataconis

FILED UNDER: Campaign 2014, Congress, Law and the Courts, US Politics, , , , ,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Iowa is a big race too




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  2. @C. Clavin:

    True, but Iowa has been competitive for awhile now, in part because Bruce Braley has an interesting talent for putting his foot in his mouth.

    The idea of the GOP having to aggressively defend a Senate seat in Kansas…….well, let’s just put it this way, the last time they lost a Senate race in Kansas was in 1932. And there have only been five non-Republican Senators in the 150+ years that Kansas has been a state.




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  3. Grewgills says:

    Funny how before the lawsuit it was impossible to delay the printing of the ballots and now that things didn’t go Kobach’s way it is suddenly possible to delay the printing. It’s almost as though his decisions are entirely politically motivated.




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  4. danimal says:

    Free advice, probably worth every penny, too.

    If forced by a lawsuit, the Kansas Democratic Party should find another “Pat” Roberts to run for Senate. Patricia Roberts? Patrick Roberts? Joe “Pat” Roberts? I’m sure there’s someone from Topeka with a similar name. Anything to draw votes from the GOP incumbent.

    Games should be played when bad faith is the norm. And Kris Kobach is nothing but a bad faith actor.




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  5. C. Clavin says:

    @Doug Mataconis:
    Yeah… but I think Kansas is already baked into the credible predictions.
    I could be wrong…we’ll see how they change.




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  6. legion says:

    3. In ruling this way, the court avoided a messy factual dispute over whether Taylor was promised by election officials that his letter was sufficient.

    Which is actually kind of disappointing, but probably the best the GOP could hope for. It seemed pretty clear that Kobach was doing this to corruptly influence the entire race for the benefit of his own party instead of even giving the slightest damn about the state of Kansas. If they’d forced a debate about this point, there’s a reasonable chance (given that this decision was unanimous) that Kobach could be vulnerable to indictment & being kicked out of his own job.




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  7. @legion:

    I get your point, but appellate judges tend to try to avoid having to be “judges of fact” rather than “judges of the law.” And since this case did not get an evidentiary hearing in a trial court because of the time limits involved, I wasn’t surprised that the Justices decided to stick to the law instead of getting mired down in disputed facts




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  8. KanasMom says:

    Brownback and Roberts are going down. Kobach needs to watch out himself. Yes, Kansas is conservative, but we are not Alabama. We elected Sebelius twice and Joan Finney (D) before her. Dole, Kassebaum and Eisenhower are the norm here. Brownback has deeply poisoned the well. And I’ve said it before and I’ll say it again, Koch Industries are not some anonymous shibboleth in this state. We know who they are, we know what they want.The majority of the state may not like Obama, but who fvking cares, he’s not on the ballot. Koch Industries are.




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  9. Dave D says:

    @Doug Mataconis: The big smear is Braley being recorded at a fundraiser in an apparent “gaff.” Saying “We could have a farmer from Iowa who has never been to law school the head of the senate judiciary committee.” I don’t understand how any hay has been made out of this. I also think if the word farmer would’ve been left out no one would oppose what he said. That in mind Ernst is a bad candidate and there are about an equal amount of smear campaigns against her by various PAC’s as there are from Braley. I’s say it is probably up to turnout, but in statewide elections demagogues don’t usually win. This is bad news for Ernst who is being painted as a far right ideologue mostly because she likely is and needed the TP vote to win the primary. Combine that with all the document Koch money flowing to her campaign, I’d be surprised if it is truly as close as reported. All that said Braley is a bad candidate. I’ve never seen such a love for incumbency as exists here. We haven’t had a new senator since 1985. We have the 5th and 6th most senior senators, Harkin being the most senior junior senator in the nation. Braley has name recognition from congress Ernst doesn’t. Even in an off year I see a very uphill battle for her to pick up the seat from the Dems. That in mind the possibility for losing a seat in Kansas doesn’t really shout Repub take over of the senate.




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  10. Franklin says:

    As the linked article above notes, Kobach appears to be taking the position that Kansas Democrats are not statutorily required to name a replacement candidate to fill Taylor’s place on the ballot.

    I believe a small error.




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  11. Franklin says:

    By the way, I sort of called this. The “pursuant to” clause seemed pretty strong to me, as I noted in the comments of the previous thread. So hooray for me, a legal noob.




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  12. Jeremy R says:

    @danimal:

    Or have someone legally change their name to “Vote Orman” (middle name “For” if the ballot has full middle names).




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  13. Andy says:

    So, if Democrats don’t have anyone on the ballot, will they be able to use their money and resources to help Orman?




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  14. @Franklin:

    Yes it was. Fixed.




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  15. OzarkHillbilly says:

    It is sure to infuriate Republicans.

    What else is new, infuriated is their default setting.




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  16. Vast Variety says:

    I don’t see how the SOS can force Democrats to name a new candidate. I’ve never heard of a law that requires a party to name a candidate.




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  17. C. Clavin says:

    Here is a good article explaining why what’s happening in Kansas is happening in Kansas…..

    http://nymag.com/daily/intelligencer/2014/09/have-republicans-finally-gone-too-far-in-kansas.html




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  18. Raoul says:

    This was such an easy decision. The role of the AG in this situation is magisterial. Take the information request and pass it along- what – was he going to cross examine the candidate to ascertain his own personal perceptions? Give me a break. Yale must be so proud.




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