No Factfinding Necessary in #KSSEN Dispute?

Via TPM comes news that the Kansas Supreme Court has agreed to hear the question whether to remove Chad Taylor’s name from the ballot (a move that could help coalesce support around independent Greg Orman and against Republican incumbent Senator Pat Roberts). But there was something unusual about the Kansas Supreme Court’s order related to what happened in the elections office.

In Taylor’s filing, he claimed that he was given assurances by election officials that his letter was sufficient to withdraw from the race, even though it did not mention the magic words of being “incapable” of serving in the Senate as listed in the withdrawal statute.

In Kobach’s responsive pleading, Kobach argued (among other things) that the Kansas Supreme Court should not take original jurisdiction over this case because there was a disputed finding of fact: Kobach has said that election officials deny telling Taylor his letter was sufficient for withdrawal. Generally trial courts do factfinding and appellate courts like the Kansas Supreme Court are not in a position to do factfinding.

In today’s Kansas Supreme Court order, the court specifically addressed the point as follows:



It is hard to know what to make of this. Is the court saying that it is going to rule against Taylor on the question whether the government is estopped from claiming he can’t withdraw from the race, and therefore the evidence in Taylor’s affidavit is irrelevant? Or is the court going to take Taylor’s representations on face value, even though there may be contrary evidence?  The former would seem more likely but I would have expected the court to want briefing on the estoppel question before making such a determination.

Whatever the court decides, this is a very interesting development.


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