My Analysis of New #KSSEN Filings in Taylor v. Kobach

The Kansas Supreme Court has now posted additional filings in the Taylor v. Kobach case.  Here are a few observations about the new filings.

1. One of the questions is what Bradley Bryant of Kansas Secretary of State’s office told Chad Taylor about whether his letter withdrawing from office was sufficient.  He’s slightly changed his description of what he’s said since last week. In the affidavit filed last week, he said that he “gestured that the answer was uncertain.” On page 3 of the new affidavit, he says “I gestured by shrugging my shoulders as to indicate ‘we’ll see.'”  There is a major factual dispute about what Bryant told Taylor. But the Kansas Supreme Court doesn’t want more factfinding, and so it likely appears it will resolve this dispute without regard to factfinding. (E.g, it could side with Kobach even if it assumes everything in the Taylor application is true.  Or it could side with Taylor by stating that the letter is sufficient as a matter of law. Either way, the factual dispute goes away.)

2. The state has offered a very detailed defense of Kobach’s decision to not accept the letter as sufficient. It makes the arguments I would have expected (plain language, no estoppel against the government, etc. ). But one thing that is new is that the brief offers a very detailed legislative history of the 1997 amendments to the legislative statute. These amendments added the language about incapability of serving. According to Kobach’s description of the legislative history, the statute was added to prevent “dummy” or “placeholder” candidacies of parties, where parties replaced candidates at the last minute, causing headaches for election administrators. I have no idea if this history is correct (and Taylor’s filings do not address the legislative history.) But even if this is correct, if the problem with placeholder candidates is one of convenience of election administrators in printing ballots, then we might have a Torricelli situation. in that case, the Supreme Court of New Jersey said that so long as there was time for election administrators to make a change on the ballot, the time frame for withdrawal and replacement should not matter.

3. Those who remember the U.S. attorneys scandal and fights over the Bush Justice Dept. and voting rules may be amused to know that Bradley Schlozman is one of the authors of the brief. (It is a very well written brief by the way).

4. Taylor’s new filing is relatively short and basically hammers home the “pursuant to” argument.  That is, the letter was sufficient to withdraw and did not need to recite the magic words of “incapability. There’s nothing in here about the legislative history, which is kind of surprising. Is there another filing coming?

5. Interestingly, there’s a proposed amicus brief in there from a supposedly Democratic voter who is fighting against Taylor withdrawing from the ballot. Wonder who is paying his lawyer’s fees.

6. Upon reviewing all the filings in this case, I continue to believe this case could go either way. I could see a principled opinion from the Court keeping Taylor on the ballot or one removing him. The big question about removal is if the court is then going to require the Democrats to quickly pick a substitute candidate to go on the ballot. Perhaps not.

7. Oral argument will be webcast tomorrow here at 9 am Kansas time. 20 minutes per side.  Too early in the day for popcorn? (“All Supreme Court oral arguments are webcast live through the Watch Supreme Court Live! in the right-hand column of the Kansas Judicial Branch website at www.kscourts.org. Oral arguments are also recorded and stored in an online archive for viewing at another time.”)

 

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