Kansas Supreme Court justices grilled Secretary of State Kris Kobach’s attorney at a special court hearing Tuesday about whether Democrat Chad Taylor should remain on the ballot as a candidate for U.S. Senate.
Taylor’s suit to remove his name from the ballot is unprecedented in the state.
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 suit hinges on whether Taylor adhered to a statute that requires candidates to declare that they are incapable of serving in order to withdraw.
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Earlier this month, Kobach determined that Taylor, the district attorney of Shawnee County, failed to do that in a letter he submitted to the Secretary of State’s Office on Sept. 3, the deadline to withdraw.
Pedro Irigonegaray, Taylor’s attorney, argued that Kobach lacked the legal authority to make that determination because the statute does not specifically say that it’s up to the secretary of state to decide whether candidates have met the standard.
He also contended that the statute does not specifically say the declaration has to be in writing.
Edward Greim, who represented Kobach, argued that as the top election officer, Kobach has the power and duty to enforce the statute.
“If it (the declaration) could be made at home to someone’s goldfish, then the statute is meaningless,” Greim said.
Justice Lee Johnson said the court’s role is to interpret the plain language, not to provide meaningful enforcement.
“We have to add language to get to your interpretation,” he told Greim.
The justices flooded Greim with questions.
Before he could describe why Taylor’s letter missed the requirements, Justice Carol Beier cut in with a question about another letter submitted to the Secretary of State’s Office by Miranda Rickel, a House candidate who withdrew from a race in District 5 this year.
Rickel described in her letter how juggling jobs and college classes made it “nearly impossible” to mount a campaign.
“Her letter says it will be ‘nearly impossible’…she does not say ‘incapable,’ ” Beier said.
Greim said the letter contained facts that were tantamount to a declaration of incapability, but Irigonegaray said Rickel’s letter showed that she was incapable of running, not of serving.
Justice Dan Biles also questioned whether Rickel’s letter had been properly notarized, another requirement of the statute. Her letter was stamped by a notary, but unlike Taylor’s letter, the notary did not note whether the letter was signed in front of her
Biles said enforcement of this requirement appeared “loosey goosey.”
Greim said notarization was a side issue.
“What we’re talking about is what the secretary of state can and can’t do,” Johnson said in response. “You’re saying he can ignore a critical procedural aspect but can exercise discretion (about what constitutes a declaration).”
After the hearing Kobach said that his office has employed the same standard of notarization that has been effect since former Secretary of State Ron Thornburgh’s tenure, which spanned from 1995 to 2010.
Kobach’s office submitted to the court letters dating to 2006 that show all candidates other than Taylor either declared they were incapable or stated facts that explained their reasons for withdrawing from the race, which Kobach and his attorneys say are tantamount to a declaration.
Kobach said all Taylor had to do to withdraw was say “the magical words” or give a reason for his incapability.
“For whatever reason, Mr. Taylor has not made that declaration,” Kobach said. “I don’t know what his reason is. I’ve never heard him answer any questions to a reporter to what the reason is…I’m waiting with bated breath to see it in print.”
Taylor left the courtroom quickly after the hearing and did not answer questions from reporters.
Irigonegaray contended that Taylor’s letter, which requests his name be withdrawn from the ballot “pursuant to” the statute, does constitute a declaration.
“What else would the words ‘pursuant to’ mean?” Irigonegaray asked the court. He said the letter “clearly indicated an inability to fulfill the duties of office.”
Justice Eric Rosen was skeptical of this argument.
“Isn’t this statute here to prevent what we’re arguing?” Rosen said, pointing out that the statute requires a candidate to be dead or incapable of serving to come off the ballot.
He said that the word “declares” in the statute suggests that a proclamation is needed and using the phrase “pursuant to” could refer to any portion of the statute, not necessarily the declaration of incapability. He said if citation alone were enough that “seems to defeat the purpose of the statute.”
Observing the court
Rick Hasen, an election law expert at the University of California at Irvine, who watched the proceedings via webstream, said he thinks that despite Rosen’s skepticism the justices probably will side with Taylor’s attorney and say that citing the statute satisfied the base requirements.
“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…because Kobach lacked the discretion to judge if the letter complied,” Hasen wrote in analysis.
Chief Justice Lawton Nuss suggested that it would disenfranchise voters to keep on the ballot a candidate who has stated in an affidavit that he will not serve if elected. Republicans have contended that allowing Taylor to withdraw would disenfranchise the Democrats who voted in the primary.
This point seemed particularly important to Keen Umbehr, an Alma attorney and the Libertarian candidate for governor, who attended the proceedings as an observer.
“For a lawyer, this is like going to a Super Bowl,” said Umbehr, who thought it was pretty clear that Taylor’s side had gotten the better of Kobach’s in the courtroom.
The court is expected to issue a decision quickly; ballots must be printed this week in order to be mailed to absentee voters by Saturday. But a ruling might not end the drama.
A separate statute says that when a vacancy occurs after the primary, it “shall be filled by the party committee of the congressional district, county or state, as the case may be.”
Kobach said that his office would insist that Democrats appoint a replacement candidate. He would not say for certain whether he would be ready to take that issue to court, but he said that was possible.
Joan Wagnon, the state’s Democratic Party chair, told the Associated Press that she did not think it would be physically possible to appoint a replacement at this point.
“My position is until the court tells me to do something, I’m not going to anything,” Wagnon said when asked about that statement. “That’s my position.”