Live Blogging #KSSEN Taylor v. Kobach: Analysis

Oral argument in the Kansas Supreme Court has now completed in the case of Kobach v. Taylor, on the question whether Taylor’s name can be removed from the Kansas U.S. Senate ballot. The issue is especially important with incumbent Republican Senator Pat Roberts now trailing independent Greg Orman in recent polling and with the fate of the Senate potentially hanging in the balance.

While it is always hazardous to predict outcomes from oral argument (because Justices sometimes ask rhetorical questions or minds change after argument), I think it is likely the Justices will quickly issue an order removing Taylor’s name from the ballot. Nothing is a sure thing, but enough of the Justices speaking seemed to indicate their belief that Taylor should be allowed to withdraw because Taylor’s declaration of withdrawal complied with the statute (by stating he was withdrawing “pursuant to” the statute even if he did not mention the magic words of withdrawal), or substantially complied with the statute, or he complied because only the request to withdraw but not the declaration of incapability needs to be in writing, or because Kobach lacked the discretion to judge if the letter complied, or because the court should view Taylor’s declaration as complying with the statute to avoid the risk of voter confusion.

Much of the discussion at oral argument concerned other letters of withdrawal which the SOS had received in recent years, including some earlier letters which were submitted (late) to the court. It seems to show a pattern of the SOS exercising discretion in deciding which letters complied. The Justices seemed to get Kobach’s lawyer to admit that substantial compliance may sometimes be enough. With that concession, there is a relatively easy path to finding the letter substantially complied.

Nothing in the argument seemed to turn on whether Taylor received incorrect assurances that the letter was accurate from someone in the Secretary of State’s office. It looks like the Court will avoid the disputed factual issue by finding that the letter (substantially) complied with statutory requirements.

If the Court does allow Taylor’s name to be removed from the ballot, what is not clear is what happens to naming a replacement. As I understand it the name must come from a party convention, but the ballots must begin being printed on Saturday.

Below the fold you can find my original, unedited notes as oral argument was underway.

Video came on in the middle of argument.

Taylor’s lawyer is making the “pursuant to” argument to make a statutory argument.

Surprised Marc Elias is not arguing.

Justice asks if letter is effective even if you strike “pursuant to” language. Taylor’s lawyer says “less compelling” but yes.

Another Justice asks if the declaration has to be made to SOS.  Taylor’s lawyer says declaration to SOS is not necessary. Taylor’s lawyer says he’s not relying on anything other than the letter. (Justice seemed to be suggesting declaration could have been made to someone else.)

Justices seem to be offering Taylor a way to make an argument that he made a declaration outside of court. But Taylor’s lawyer doesn’t seem to get the point and says there’s nothing else outside the letter.

Putting everything into the “pursuant to” language.

Justice says “pursuant to” could be pursuant to being in language.  Not very clear. “A pretty broad brush.”

I’m surprised there’s no argument here about either substantial compliance or the purpose of the statute.

A Justice asks if statute gives Kobach discretion to decide if letter complies.  Asks if letter was accepted by SOS.

Is it a duty without discretion, or is there discretion?

Taylor’s lawyer finally made the right point: it would be an abuse of discretion to not accept a letter that substantially complies with the statute.

Another Justice points to the “may request” language.  Taylor’s lawyer says once candidate requests, then SOS must accept.

Taylor’s lawyer says he offered too much of an argument before. It is a simple case.

Justice asks if Taylor is arguing both full compliance and substantial compliance in the alternative.

One Justice says one must be incapable or serving or dead to get off the ballot. And that’s what distinguishes it from pre-primary withdrawal.  What’s the purpose of drawing a distinction between these two statutes.

Taylor’s lawyer says it needs a serious declaration. It need not be made to the SOS. Back to the pursuant to argument.

Overall, Taylor’s argument was rather weak. He’s finishing up after his time discussing First Amendment issues. He seems to miss the help the Justices were offering him.

Kobach’s lawyer is up.

Justice says a letter in the record has been accepted by SOS to keep candidate off the ballot. That one did not meet the language of the statute. So doesn’t that mean SOS had to exercise discretion?

Justice: In order for you to prevail, there has to be discretion in the statute?

Kobach’s lawyer trying to explain why some letters of withdrawal were accepted but Taylor’s letter was not. Justice points to letter in which the words “incapable” did not apply.

Justice pushes that Kobach must have discretion.  But where is that discretion given in the statute? (This Justice seems skeptical of Kobach having such discretion).

The court is spending a lot of time on other letters and how Kobach exercises discretion.

Kobach’s lawyer says it is substantial compliance to state reasons for being incapable. This seems like a big concession. Justice asks if substantial compliance should apply to Taylor’s letter.

Justice: if facts mattered, we would use an affidavit not simply a notary.  Kobach’s lawyer says no role in seeing if statements are truthful. Just need to see the declaration.  There must be some factual statement.

Kobach’s lawyer says candidate can avoid issue by using 14 words.

Justice: why isn’t “pursuant to” enough to use those incapability words?

Justice: Is there any other reason other than incapability that would be acceptable?

Justice: When you say “pursuant to,” aren’t you incorporating it?

Justice: Where does statute say declaration must be in writing?

Another Justice: The request must be in writing. Not clear that the declaration has to be in writing.

None of the focus of the argument is on estoppel, over what Kobach’s election division told him.

Kobach’s lawyer says declaration of incapability cannot be made to a goldfish. Must be made to SOS/staff.

Justice: Plain language of this does not comport with your interpretation.

Back to looking at other letters.

Kobach’s lawyer is in surprising trouble based on what some of the Justices see as the plain language of the statute and lack of discretion on SOS Kobach’s part to decide which letters comply.

Kobach’s lawyer again says discretion to decide if letter substantially complies.

Justice getting Kobach’s lawyer into a box on substantial compliance.

Kobach’s lawyer now says the letter from Taylor did not substantially comply.

Justice asks if public declaration of incapacity on steps of capitol—would that be enough?

Kobach’s lawyer says it must be in writing.

Justice: If “pursuant to” is not enough, would saying “incorporating by reference” is not enough?

Kobach’s lawyer said they had to construe letter overnight and meet with letter to figure out if it complied. (That sure seems like a bad test for deciding whether there is substantial compliance.)

Kobach’s lawyer saying “I incorporate the language of the statute” would not be enough.

Justice: Has a voter who voted for Taylor lose his vote?  What about voters who do not know about this proceeding and see their votes for Taylor, not knowing he won’t serve?  If we keep Taylor’s name on the ballot are we then negating vote of those who might vote for him?  (This question leans heavily toward removing Taylor from the ballot.)

Justice asks about supplemental papers filed later.  May not be a complete set. Discussion of late filing.

Taylor’s lawyer up for rebuttal.















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