Democrat Chad Taylor’s name won’t be on the ballot for U.S. Senate.
But Secretary of State Kris Kobach is determined that another Democrat will be.
Minutes after the Kansas Supreme Court issued a unanimous decision overturning Kobach’s decision to keep Taylor on the ballot, Kobach declared that the state’s Democratic Party must convene its state committee and choose another nominee by Sept. 26.
Democratic leaders did not have an immediate response to that, though party chair Joan Wagnon said earlier in the week that “until the court tells me to do something, I’m not going to do anything.”
The court said the Democratic Party was not part of the case and did not rule on whether it had to appoint a replacement.
The outcome of the dispute and the race could affect whether the Republican Party can recapture control of the U.S. Senate. Republicans need a net gain of six seats to take the Senate majority from Democrats, and Kansas is one of about a dozen races nationally that could determine the outcome.
Taylor’s withdrawal gives a better-funded challenger, independent candidate Greg Orman, an opportunity to challenge U.S. Pat Roberts more directly. Polls have shown a tight race between Roberts and Orman.
The court battle occurred after Kobach, a Republican and member of Roberts’ honorary campaign committee, decided Taylor failed to follow a Kansas statute that requires candidates to declare that they are incapable to serve when they withdraw.
The court rejected Kobach’s interpretation that Taylor’s withdrawal letter, which asked that his name be withdrawn ‘pursuant to’ the statute, did not constitute a declaration.
“So Kobach offers no position on what is meant by ‘pursuant to’,” the court stated in its opinion. “He simply denies the phrase is sufficient to meet the statutory requirement that a candidate declare he or she is ‘incapable of fulfilling the duties of office if elected.’”
The Kansas Republican Party issued a statement blasting the court’s decision, pointing out that Taylor had been urged to withdraw by U.S. Sen. Claire McCaskill, D-Mo., and that his legal team included Marc Elias, who has represented several high-profile Democrats, including Senate Majority Leader Harry Reid, D-Nev.
“It is depressing to see the state Supreme Court condone political gamesmanship and a national power play to deceive and disenfranchise Kansas voters,” Kelly Arnold, the group’s chairman, said in the statement. “It is pathetic that the Kansas Democrats are celebrating that their own candidate, elected by their own voters, quit.”
The statement also contended that if Taylor is incapable of serving in the Senate, he also is incapable of serving as Shawnee County district attorney, the position he holds now.
The Roberts campaign issued a statement decrying the ruling. “Today, the Kansas Supreme Court deliberately, and for political purposes, disenfranchised over 65,000 voters,” said campaign manager Corry Bliss.
One of those Democratic voters – David Orel of Kansas City, Kan., whose son works on GOP Gov. Sam Brownback’s re-election campaign – filed a new petition with the high court to force Democrats to name a candidate.
Pick another candidate
Kobach quoted a Kansas statute Thursday in saying Democrats would have to appoint another candidate: “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.”
“This says ‘shall.’ I don’t know how anyone can read ‘shall’ to mean ‘may’,” Kobach said at a news conference after the court’s decision.
“Eight days is more than enough time. If the Democratic Party wishes to play games with our election laws and not nominate a replacement, then I encourage the members of the press corps to ask them why,” Kobach said.
He said federal law would allow him to postpone the mailing date of overseas absentee ballots as long as the ballots had a 45-day window to be counted.
If the Democratic Party refuses to appoint a replacement, he said, he will consider the possibility of returning to court.
It seems unlikely that the Democrats will be in any rush to appoint a replacement. Wagnon said in a statement Thursday that she applauded the court’s “decision to follow the law and stop Kris Kobach from undermining Kansas democracy.”
She could not be reached for additional comments after Kobach announced that Democrats had to appoint a candidate by Sept. 26. Other Democratic Party officials would not comment on the matter.
Reactions to decision
Rick Hasen, an election law expert from the University of California, Irvine, said that it was unlikely that Kobach would be able to force the Democrats to name a replacement for Taylor.
“If Democrats refuse to name or no candidate agrees to serve, then what? It seems like it would be a tough First Amendment claim to FORCE a party to name a replacement,” Hasen wrote in an analysis. “Perhaps if Democrats do nothing Kobach will realize there’s not much he can do and drop the issue.”
Pedro Irigonegaray, who successfully represented Taylor, said that Kobach should learn a lesson from the court’s opinion in this case.
“Mr. Kobach should stop wasting the state’s money and concentrate on doing the job of secretary of state,” Irigonegary said. “The suggestion that the law requires the Democratic Party to place a candidate for nomination is as wrong as his opinion regarding the removal of Mr. Taylor from the ballot. If Mr. Kobach attempts to do that, I assure you he will lose.”
Irigonegaray called the decision a rebuke of Kobach and said that he found the victory particularly rewarding, noting Kobach’s activism in pushing proof of citizenship and other laws around the country meant to target illegal immigration.
“What was most striking to me as a Hispanic lawyer was to see a public official, Mr. Kobach, who holds himself out as the defender of the ballot doing the opposite … simply to gain a political advantage” Irigonegaray said. “Our democracy is not fragile, but it should better taken care of those who swore an oath to protect it.”
Kobach maintained that he had only sought to enforce the law. He accused the court of nullifying the statute by allowing Taylor’s name to be taken off the ballot.
Orman’s campaign issued a short statement that did not address the court decision. A spokesman did not return phone and e-mail messages seeking comment.
Contributing: Dion Lefler of The Eagle; Associated Press