Editor’s note: The bill number in this story has been corrected to HB 2104. An earlier version had an incorrect number.
Candidates who win a primary election would have to stay on the November ballot unless they die – and they would have to do that by Sept. 1 – under a change in election law being pushed by Secretary of State Kris Kobach.
The bill – called the “Taylor bill” by Kansas Republicans – rewrites the statute at the center of the court battle between Kobach and Shawnee County District Attorney Chad Taylor. Taylor, a Democrat, withdrew from the race for U.S. Senate in early September, essentially clearing the way for independent Greg Orman to take on Republican Sen. Pat Roberts.
Kobach said Taylor should stay on the ballot, contending he had not met state statute that requires a candidate to declare himself unable to serve; Taylor did not state that in writing. The Kansas Supreme Court rejected Kobach’s argument and Taylor was taken off the ballot.
The case received national attention.
HB 2104 would strike that section of the law, leaving death as the only reason a person could be taken off the ballot. The name of a candidate who died after Sept. 1 would remain on the ballot, Kobach said, because of the tight time line for printing ballots.
Kobach testified on the bill before the House Elections Committee on Wednesday. He called it a direct response to the Taylor ruling but said he was not pushing it because of sore feelings over the high-profile court loss.
“No, it’s not sour grapes at all,” Kobach said. He said it was necessary for the Legislature to reassert its constitutional authority in the wake of what he considered a flawed ruling.
“Here was an example of the courts misinterpreting the laws clearly. ‘Sour grapes’ suggests that you’re sour for losing and because of that loss you’re doing something,” Kobach said. “No, I’m trying to prevent this from happening again. It’s not sour grapes. It’s looking forward to, OK, if the courts have a tendency to misinterpret Kansas election law this’ll prevent that from happening.”
The bill would also require courts to interpret the word “shall” as mandatory. A Shawnee County court rejected a lawsuit to force the Kansas Democratic Party to appoint a replacement for Taylor; the statute says that when there’s a vacancy on the ballot, the party committee shall appoint a replacement.
“We had two examples of the courts grossly misinterpreting the meaning of Kansas law. The Supreme Court essentially ruled that ‘declare’ doesn’t mean ‘declare’ and the three-judge panel literally ruled that ‘shall’ means ‘may,’” Kobach said.
“When a court gets it wrong, the Legislature has to act in order to reassert its constitutional role as the writer of laws. … If the court had interpreted the law correctly, we wouldn’t be doing this,” he added.
Rep. Steve Huebert, R-Valley Center, said he would probably vote for Kobach’s bill, but questioned its necessity. He said Kansas voters had performed a check on the courts, arguing that the reaction to the Taylor case helped galvanize Republican support for Roberts, which also benefited Gov. Sam Brownback and other Republican candidates.
Rep. John Carmichael, D-Wichita, repeatedly sparred with Kobach during the hearing.
“Of course he’s retrying the Taylor case. The secretary of state lost. He lost for a good reason,” Carmichael said after the hearing.
Kobach’s bill would mean that if a person was legitimately unable to serve – because a family member became ill or because he or she moved out of the district – the person would still be forced to run and then resign immediately upon taking office, Carmichael said.
In the case of legislators, that would mean precinct committee members would pick the replacement rather than voters.
“He’s defeating the ultimate purpose of democracy and that is to honor the electorate’s decision,” he said.
Carmichael said Kobach was attacking the courts as part of a bigger political agenda, which he saw as connected to another Kobach bill, HB 2108, which would allow straight ticket voting in Kansas – including in partisan judicial races in Sedgwick County.
Kobach said that allowing straight party ticket voting as an option would prevent voter drop-off down ticket. In the last election, 68,000 people cast votes for governor but not for state representative.
Kobach called it “a matter of voter convenience.” He said many voters are in a hurry when they come to the polls.
“I think we should give voters this option. I’m certain this will speed up the process,” he said.
He said newspaper editorials that have suggested the policy encourages thoughtless voting were an insult to the intelligence of Kansas voters.
The straight ticket voting would not affect nonpartisan races or ballot questions. It also would not prevent someone from voting for a straight Republican ticket and then choosing a Democrat in one or two races, or vice versa.
Rep. Kathy Wolfe-Moore, D-Kansas City, who attended the hearing but is not a member of the committee, said Kobach’s bill is exactly the direction that people want politicians to move away from – being so partisan.
“We work very hard in Wyandotte County so that when people get to the voting booths we’ve given them opportunities to learn about the candidates, to study them,” she added. “This flies in the face of thoughtful decisions.”