More on Whether Chad Taylor’s Withdrawal from #KSSEN is Kosher

I earlier linked to coverage in The Hill and Hot Air which raises the question whether Democrat Chad Taylor’s withdrawal from the Kansas Senate race is allowed. The relevant statute, KS 25-306b(b) provides that a candidate can withdraw within a certain time frame: “Any person who has been nominated by any means for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds.”

At issue is the “who declares that they are incapable of fulfilling the duties of office if elected.” Taylor’s letter did not so declare, and it looks like the deadline has passed. Now what?

There do not appear to be any cases construing 25-306b. There is an attorney general opinion 92-66 (on Westlaw) which reads the statute broadly to allow presidential candidate Ross Perot to replace his vice presidential candidate on the ballot (even though the statute on its face did not provide for that). But that 1992 opinion predates the 1997 Kansas amendments to the statute, which specifically added the (ungrammatical) language about the candidate declaring he or she is incapable of fulfilling the needs. Nothing on Westlaw explains why the language was written in this way.

So the initial question of whether Taylor’s withdrawal is kosher is going to fall to SOS Kobach, who I expect is likely to give the statute a narrow textual reading. One question is whether Taylor, now after the deadline, can amend his letter to include the magic words of inacapability.

This could well end up in court, and I don’t have a good sense for how the courts would rule on this question. It may be that the courts would give deference to a Kobach decision, especially because time is short.

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