Kobach will mail ballots overseas but still wants Democrats to pick a candidate

Kansas ballots are being sent overseas without a Democratic candidate in the U.S. Senate race.

But Secretary of State Kris Kobach has not given up his position that Democrats must appoint a replacement for Chad Taylor. He says overseas voters may have to cast a second ballot later.

The 526 ballots to be mailed by Saturday to overseas civilians and military personnel include a disclaimer that new ballots will be printed if a court forces Democrats to name a replacement candidate.

Some ballots from Johnson County went out Thursday with Taylor’s name. They were amended Friday.

The race for U.S. Senate garnered international attention after Taylor, the Democratic nominee, withdrew earlier this month. Kobach said Taylor would remain on the ballot because he failed to follow Kansas statute. The Kansas Supreme Court rejected Kobach’s decision and ordered Taylor’s name removed from the ballot Thursday.

Taylor’s absence from the ballot has been seen by most analysts as a boost for independent Greg Orman against U.S. Sen. Pat Roberts, the three-term Republican incumbent. The race could play into whether the Republican Party can recapture control of the U.S. Senate.

A petition filed shortly after the ruling on behalf of David Orel, a registered Democrat from Kansas City, Kan., demands that Democrats appoint a replacement. It cites a statute that says a vacancy on the ballot after the primary “shall be filled by the party committee of the congressional district, county or state, as the case may be.”

Two ballots?

The ballots sent out early are for Kansans who will vote under the federal Uniformed and Overseas Citizens Absentee Voting Act. Kobach has instructed counties not to print the rest of the state’s ballots yet.

If the Kansas Supreme Court compels the Democratic Party to name a replacement, the overseas voters will receive new ballots with a Democrat listed in the Senate race, and the first set will be invalidated.

Kobach, a Republican, said he stands by his interpretation that the use of the word “shall” in the statute means the Democrats must appoint another candidate. He said the decision to print overseas ballots now is “just in case the court rules in favor of the Democratic Party that they don’t have to fill the vacancy.”

He said he did not think the prospect of the two ballots might confuse some voters. “The explanation is clear. It tells them there’s a chance,” he said.

He said if the court compels Democrats to replace Taylor, ballots without a Democratic candidate would become invalid.

That means that a person who votes using the first ballot but does not send in the second ballot would not have his or her vote counted. This would include first ballots where the voter chose Roberts or Orman with no plans to pick a Democrat if one were on the ballot.

“I don’t think that’s a likely outcome,” Kobach said when asked about the possibility. He said his staff would be making a concerted effort to track these voters and ensure they are informed.

“We have absolute confidence that the election will go very smoothly just like the primary did,” he said.

Democrat Jean Schodorf, who is running against Kobach, issued a statement criticizing his actions. “Just when we thought that Kris Kobach couldn’t do anything worse to disrespect the voting process … he now is creating a situation that will complicate our elections for those who put their lives on the line for us every day. Our military,” it said.

The Orel case

A letter Kobach sent to county election officials Friday says the Secretary of State’s Office is in consultation with the U.S. Department of Justice about the possibility of moving the 45-day window for overseas ballots if the court rules in favor of Orel.

Kobach said he had heard that Orel might file a suit with the court, but he said he had no involvement in it.

Orel’s son, Alexander, works as a field director in the Kansas City area for Gov. Sam Brownback’s re-election campaign.

The court has yet to say whether it will hear the case, which names state Democratic Party Chair Joan Wagnon, Vice Chair Lee Kinch and the party’s executive director, Jason Perkey, as defendants.

Kinch, a Wichita attorney, declined to comment on both Orel’s suit and Kobach’s decision to send out ballots.

Kobach criticized the lack of response from Democrats. “The Democratic Party should not be going silent at this point. They have a legal obligation,” he said.

The petition states that Orel is a registered Democrat and intends to vote for a Democrat in November.

The petition also states that Orel sent the Democratic Party a letter asking party officials to confirm that they would appoint a replacement if Taylor was let off the ballot and received no response. It points to public comments from Wagnon that suggest the party has no intention of choosing a replacement.

“Respondents have publicly stated that they have no intention of naming a replacement candidate unless they are directly ordered to do so by this court,” wrote Orel’s attorney, Thomas Haney. He served as assistant U.S. attorney during the 1980s, heading up the district office in Kansas.

The 45-day rule

Sedgwick County Election Commissioner Tabitha Lehman said her office “held off” finalizing the ballots while awaiting guidance from Kobach on how to proceed.

“We’re following the instructions of the secretary of state to send the ballots without Chad Taylor’s name,” Lehman said.

But Johnson County sent out dozens of ballots to overseas voters with Taylor’s name on them Thursday, before the court ruled.

Brian Newby, the election commissioner for the state’s largest county, said Friday that new ballots without Taylor’s name have since been sent to all 77 voters.

Ten of the 77 ballots that were to be mailed were intercepted before they were delivered to the post office Thursday evening, Newby said.

The 67 ballots that were sent by e-mail included a note that cautioned voters not to cast their ballots until after Monday because litigation might mean a change was coming, Newby said.

“So (Friday morning) we sent another e-mail to everyone saying, ‘As we told you, we’re going to have to send you a new ballot. Disregard the ballot you have,’” Newby said.

“We sent out the ballot to the same people saying, ‘Here’s your new ballot without Chad Taylor,’” he added.

Kobach said Johnson County was the only county to send out ballots with Taylor’s name on them.

Newby said he was “probably a little too eager” in sending out the ballots.

But concern about a federal law and a staffing issue in his office led Newby to decide to send out the ballots Thursday before the ruling.

A Department of Justice rule states that ballots for overseas military and civilian workers have to be sent out 45 days before the election. That would be Saturday.

But since that’s on the weekend, Newby said, his interpretation of the 45-day rule is that the ballots should all be sent by Friday.

He bumped up the sending date to Thursday because he knew one of the two staff members who is responsible for mailing out military and overseas ballots was not going to be able to work Friday.

“We didn’t want to get crosswise with the Department of Justice,” he said. “We were trying to do the right thing. We said, ‘Hey, this might not be the final ballot,’ but we’d cover ourselves with DOJ.”

Contributing: Rick Plumlee and Dion Lefler of The Eagle

This story was originally published September 19, 2014 at 3:25 PM with the headline "Kobach will mail ballots overseas but still wants Democrats to pick a candidate."