Orel v. Kansas Democratic party lawsuit could scramble Senate race again

A key contest in the fight for control of the U.S. Senate could turn on the outcome of an arcane legal argument over whether Democrats must field a candidate against struggling Kansas Republican Sen. Pat Roberts.

The case heard Monday in Shawnee County District Court centers on whether a state election law requires Democrats to pick a new candidate after ex-nominee Chad Taylor withdrew earlier this month. Some Democrats pushed Taylor out, viewing independent candidate Greg Orman as the stronger rival for Roberts and hoping to avoid a split in the anti-Roberts vote that would help the incumbent stay in office.

Republicans need to gain six seats for a Senate majority, and the GOP has always counted on the 78-year-old Roberts winning in a state that has elected only Republicans to the chamber since 1932. Orman, a 45-year-old Olathe businessman, is running as a centrist – promising to caucus with whichever party has a majority. Roberts has struggled after a bruising primary and questions about his residency in Kansas.

A three-judge panel heard arguments from attorneys Monday and expects to issue a decision quickly. Secretary of State Kris Kobach has said counties need to start the process of printing ballots by Thursday so that they can be ready by Oct. 15 for people who want to vote in advance.

Taylor had to petition the Kansas Supreme Court to force Kobach, a Roberts supporter, to remove the Democrat’s name from the Nov. 4 ballot. Minutes after the high court ruling, the voter, David Orel, 57, sued the Democratic Party to get a replacement on the ballot.

Orel has long been registered to vote as a Democrat; he voted in the party’s primary this year, and his attorney, Tom Haney, said Orel wants to cast a ballot for a Democratic candidate. His 22-year-old son, Alex, works for GOP Gov. Sam Brownback’s re-election campaign.

The court’s consideration of the case was complicated by Orel’s refusal to participate in Monday’s hearing. District Judge Franklin Theis said from the bench that Orel’s absence “turned this into political theater instead of a judicial proceeding.”

But Haney said Orel could offer nothing in the way of new information and has faced intense news media scrutiny.

“He, frankly, has had it with the political process,” Haney said.

Kobach had sought to intervene in the case, but the judges concluded that his involvement wasn’t necessary.

The law in question says that if a candidate vacancy occurs after the primary, it “shall be filled by the party committee” of the district or the state, depending on the office. The judges must decide whether the language means all vacancies must be filled, or whether the law simply spells out who fills a vacancy if a party wishes to do it.

“It is definitely contrary to the interests of the Democratic Party to put up a candidate five weeks away from the election,” Randy Rathbun, a Wichita attorney representing the party, said in court.

This story was originally published September 29, 2014 at 12:23 PM with the headline "Orel v. Kansas Democratic party lawsuit could scramble Senate race again."