Breaking: In #KSSEN, Court Rules Taylor Off the Ballot: Analysis

You can read the opinion here. Here are my thoughts:

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 The big unanswered question is what happens to the other statute which appears to require Democrats to replace a withdrawn candidate on the ballot.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.

7. This whole mess could have been avoided if Taylor would have done a better job with his letter, or if Kobach did not push the issue—and the evidence that his office had accepted non-complying letters before was damning to his case. The Court noted that Kobach submitted those letters after the deadline for filings, but seemed to praise him for doing it out of an “ethical obligation” to the court. In other words, if he just sat on letters his office just found which showed the inconsistent treatment of withdrawal letters in the past, it would have been deceptive to the court.

8. So what happens next depends upon Kobach’s next move.  He has said he would sue Democrats to get them to name a replacement, but given the time frame now, and the fact that it may not be in Republicans’ political interests to let this fester any more, this may be the end.  [Update: Byran Lowry reports: “Kobach says Dem chair has been informed that she has 8 days to select a replacement candidate. #ksleg #KSSen #kseln.”  It is not clear how the 8 days fits into the existing ballot printing timeframe.]  [Second update: Kobach is moving the mailing to 9/27.  What does this say about what he represented to court about deadlines? Wow wow wow.]

9, Addendum: If Democrats refuse to name or no candidate agrees to serve, then what?  It seems like it would be a tough First Amendment claim to FORCE a party to name a replacement.  Perhaps if Democrats do nothing Kobach will realize there’s not much he can do and drop the issue. We will see.


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