In #KSSEN, Supreme Court Unlikely to Force Democrats to Pick a Candidate to Replace Taylor

A new lawsuit has been filed directly in the Kansas Supreme Court seeking to force the Kansas Democratic Party to name a replacement for Chad Taylor to run in the the U.S. Senate race for Kansas. Democrats don’t want to name a replacement, believing their best chance is to have voters voter for independent Greg Orman over incumbent Republican Pat Roberts. The suit was filed by the son of a campaign official for Brownback. 

I have reviewed the memorandum filed in support of the writ of mandamus, and it is very barebones and straightforward. It points simply to a state statute which says that when a candidate withdraws the party “shall” name a replacement. It asks the Kansas Supreme Court or order a replacement.  There are a few reasons to believe the Court won’t do so.

1. There’s a textual argument that “shall” means may and not must.  The Kansas Supreme Court put everything into a narrow textualist argument in the Kobach v. Taylor case and they could easily do so here, especially if the Justices are otherwise inclined to rule against this. There are other textual arguments too which I may get into later.

2. There seems to me to be a very strong First Amendment claim of the party not to choose a replacement.  There are a number of races in KS where Democrats or Republicans are not choosing a candidate. To require a political party to pick a candidate when it doesn’t want to do so seems to interfere with the right of a political party.  The memorandum does not address this point, but I expect any Democratic Party response will do so.

3. Further, this seems really self defeating.  Why can’t the party just nominate Pat Roberts or Kris Kobach?  Or is the claim that the Court must order the Democrats to choose a “serious” or “legitimate” candidate.  Who is going to enforce that? 

4. Finally, we are moving against the printing deadline and the federal MOVE Act which protects the ability of military and overseas voters to get their ballot on time.  Kobach is now trying to stretch those deadlines, but if this drags on, there is a serious risk of disenfranchising military voters.  It doesn’t seem the Court would want to do so.  Nor does it seem politically good for Republicans to do so.

In short, I expect this case to be a loser, sooner or later. 

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