In a 22 page, unanimous 3-judge decision, a Kansas court has ruled that the Kansas Democratic party need not name a replacement for Chad Taylor who withdrew from the U.S. Senate race. This ruling is unsurprising, given how many hurdles were before the court including issues of timing and the printing of ballots, the First Amendment rights of political parties, and questions about the standing of plaintiff David Orel, who calls himself a Democrat but did not appear at the hearing and gave no written testimony. I believe this is the end of the road for this case, given that SOS Kobach represented that ballots must go to print today—though it would not surprise me if Kobach or Orel try to go to the Kansas Supreme Court for relief.
The trial court’s opinion was straightforward and had three parts.
1.SOS Kobach had no right to intervene in the case under the statutes, and there was no good reason to let him permissively intervene. In a dig at Kobach, the court writes: “The only remaining interest of the Secretary is that he has an opinion that comports with that of the Petitioner, Mr. Orel….He has no stake in the answer itself in his capacity as Secretary of State, only the timely need for an answer.”
2. Mr. Orel lacks standing. Because he did not appear and did not given any sworn testimony, who knows what his interests are and how they differ from anyone in the general public? (My guess is that Orel, whose sone works on the campaign for Republican gov. Brownback, expected this case to get decided on the pleadings in the Kansas Supreme Court, and did not want to be subjected to examination under oath about whether he’s a Democrat, who is paying his legal bills, etc. This was clearly an action intended to benefit the Roberts (Republican) campaign.)
3. Even if the court reached the merits, it would rule against Orel. The statute provides that in the event of a vacancy the party “shall” name a replacement. The court read this as being permissive not mandatory, citing earlier Kansas cases construing the word “shall.” Most importantly, the court said that it would put a big burden on political parties to have to put up a candidacy at this late date–it’s a big burden, and the Legislature, full of people who are close to political parties, would not have intended to force parties to do this against their will. (There are hints here of the First Amendment argument I’ve raised, but it is not directly addressed.)
As I said, if there were more time, a possible appeal to the Kansas Supreme Court could be a possibility. But to bring it now would be a fool’s errand, and if Kobach brings it he’ll look even more partisan than he has looked in this whole mess.
[This post has been updated.]