Democrat Chad Taylor’s lawsuit against Secretary of State Kris Kobach will be heard by the Kansas Supreme Court on Tuesday in an unprecedented case that could help decide the balance of power in the U.S. Senate.
Never before has a major party candidate sued to be removed from an election in Kansas.
Taylor, the Democratic nominee for U.S. Senate, wants his name off the November ballot and has called in one of the Democratic Party’s top attorneys for help.
Kobach ruled that Taylor failed to properly withdraw because he did not include a declaration that he is incapable to serve in a letter that he submitted to the Secretary of State’s Office on Sept. 3, the deadline to withdraw.
Republicans see Taylor’s attempt to withdraw as a not-so-covert plan by national Democrats to boost Greg Orman’s independent candidacy against Republican incumbent U.S. Sen. Pat Roberts in November. Democrats say that Kobach, a supporter of Roberts, has overstepped his bounds as secretary of state to keep Taylor on the ballot against his will.
The question before the court is relatively simple, according to Mark Johnson, an election law expert who is a partner with the Kansas City-based law firm Dentons and a lecturer at the University of Kansas.
“The question there is: What is compliance? Is it absolute letter perfect or is it substantial compliance that clearly demonstrates the candidate’s intent?” Johnson said.
Taylor stated in a sworn affidavit that he was assured by Assistant Secretary of State Brad Bryant that the letter he submitted was sufficient to withdraw from the race. Bryant denies this claim in an affidavit of his own and says he shrugged his shoulders when asked by Taylor.
“If you read the letter, clearly Mr. Taylor intends to withdraw,” Johnson said. “And certainly if you read the affidavit that his side filed and even Mr. Bryant’s affidavit, you can see that Mr. Taylor clearly intended to withdraw. I don’t think that there’s any dispute – or could be any dispute – about what he wanted to do.”
Kansas statute says that a candidate “who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing.”
Kobach voiced confidence that the court would lean toward a strict interpretation of the statute.
“In election law, deadlines and requirements are strictly enforced,” Kobach said. “And the reason that they are strictly enforced is because if you relax the rule for one candidate then every candidate wants that rule relaxed for them.”
Kobach’s attorney, Thomas Knutzen, argued in a brief filed Monday that Kobach properly executed the law “by enforcing the plain language of the statute.”
However, Pedro Irigonegaray, who represents Taylor, argued that the statute does not specify what words a candidate must use to make this declaration or explicitly grant the secretary of state the power to determine whether a candidate’s letter meets the statute.
Irigonegaray wrote that Kobach’s “refusal to effectuate Petitioner’s withdrawal because Petitioner did not use specific language was plainly without legal authority.”
Knutzen submitted hundreds of pages of documents to the court on Monday, including affidavits from Bryant and Assistant State Election Director Bryan Caskey and withdrawal letters from other candidates.
“I could easily see the Kansas Supreme Court writing a sensible opinion either way. I think this is a very close case. … It’s very hard for me to handicap this one in part because we have no Kansas case construing what this language means,” said Rick Hasen, an election law expert from the School of Law at the University of California, Irvine.
Hasen said the closest precedent would be the 2002 case when the New Jersey Supreme Court ruled that the Democratic Party could replace U.S. Sen. Robert Torricelli, who was embroiled in an ethics scandal, after the withdrawal deadline.
“It’s a somewhat different situation because there the Democrats were desperate to get a new candidate on the ballot. Here the Democrats are desperate to have no candidate on the ballot,” Hasen said.
Even if the court rules that Taylor’s name can come off the ballot, the Democrats may be forced to appoint a replacement candidate because a separate statute says that “When a vacancy occurs after a primary election in a party candidacy, such vacancy shall be filled by the party committee of the congressional district, county or state, as the case may be.”
Dakota Loomis, a spokesman for the Kansas Democratic Party, said that the party would be waiting to see how the court rules before making any plans to replace Taylor.
Taylor’s legal team has added Marc E. Elias, a prominent attorney from Washington, D.C., who has represented several Democratic heavyweights as clients, including Senate Majority Leader Harry Reid, D-Nev.
Elias successfully represented U.S. Sen. Al Franken, D-Minn., when the 2008 Minnesota Senate election was contested for eight months of recounts and court battles.
“It shows that Democrats are taking this seriously and that it’s in their interest to get Taylor off the ballot,” Hasen said about Elias joining the team. “It’s in the interest of the Democratic Party to not have Pat Roberts get reelected.”
U.S. Sen. Claire McCaskill, D-Mo., has said she urged Taylor to drop out of the race in a phone conversation.
On the campaign trail Roberts has compared the Missouri Democrat’s involvement to Quantrill’s Raid, the 1863 attack by a pro-slavery Missouri militia on Lawrence that left about 200 people dead.
His campaign manager, Corry Bliss, downplayed the importance of the Supreme Court case to the Senate race on Monday.
“Whether we run against one Democrat or two Democrats, we are focused on our campaign and our message,” Bliss said.
Orman’s campaign has repeatedly pushed back against Roberts’ attempts to label Orman as a Democrat. The campaign declined to comment on the court case.
The court will have to act quickly after it hears the case. State law says absentee ballots must be ready to be mailed overseas by Saturday.
How to watch the arguments
The Kansas Supreme Court will hear arguments beginning at 9 a.m. Tuesday. You can watch at www.kscourts.org.