The Corner

The Minutiae of Election Rules in the Kansas U.S. Senate Race

The Kansas Supreme Court heard oral arguments this morning in the dispute over whether the state’s ballot will bear the name of the Democratic nominee for the U.S. Senate. The nominee, Shawnee County district attorney Chad Taylor, tried to withdraw from the ballot on September 3. With less than an hour to go before the deadline for withdrawal, he hand-delivered his written request to Kansas secretary of state Kris Kobach. But Kobach has refused to take Taylor’s name off the ballot, asserting that his attempt to withdraw did not comply with Kansas law.

Many political observers see Taylor’s bid to withdraw as a political ploy to clear the field for former Democrat Greg Orman, the independent candidate in the race. Polling showed Taylor and Orman were splitting the Democratic vote in their attempt to unseat the Republican incumbent, Senator Pat Roberts. Representative Mike Pompeo (R., Kan.) told National Review Online that “this is pure, cold, political calculus on the part of the Kansas Democratic party and the national Democratic party” intended to “get another liberal into the Senate.”

Last Thursday, Taylor filed a writ of mandamus asking the Kansas supreme court to order Kobach to withdraw his name from the ballot. The court ordered that all briefs on the case be filed by Monday and held oral arguments this morning. Time is of the essence, because the ballot has to be certified so that it can be printed and sent out to early voters, such as servicemen and women stationed overseas. (Those ballots must be mailed 45 days prior to Election Day under federal law.)

The crux of the case revolves around 14 words that the Kansas legislature added in 1997 to the state statute governing withdrawal of a nominated candidate (K.S.A. 25-306(b)). Prior to this amendment, a candidate could withdraw for any reason or no reason. But the amendment requires any candidate to declare “that they are incapable of fulfilling the duties of office if elected.”

Taylor, despite being a lawyer who spends his days reading and applying state law, failed to do that. His withdrawal letter simply stated that he wanted to withdraw from the race pursuant to the statute. As an amicus brief filed by a Democratic voter, David Orel, supporting Kobach says, Taylor “merely invoked the statute, without saying a single word about whether (or why) he is incapable of serving if elected.”

Kobach’s brief lays out the unambiguous history of the statutory amendment. Kobach makes a clear-cut case that the Kansas legislature intended to prevent the exact type of political manipulation now occurring in this U.S. Senate race. His brief emphasizes that requiring a declaration of incapability had a very specific purpose: “to combat the problem of dummy or ‘placeholder’ candidates.” Requiring such a declaration “was intended to prevent party leaders from inducing candidates to resign in the service of a larger political play.” It “ensured that the primary election process did not become a game, confusing voters, giving the appearance of corruption and undermining public confidence in the electoral system.”

In fact, the amicus brief filed by David Orel supports the point that declaring oneself “incapable” is not something a sitting officeholder who is a candidate wants to do. As the brief says, although Taylor:

seeks to convince this Court to intervene in a federal election, he has not explicitly declared himself incapable of service (or offered any reason for why he is incapable. Instead, the most he can say is that his desire has run dry: he “do[es] not want to be a candidate for U.S. Senate”; “do[es] not want” to have his name on the ballot; ”do[es] not want to have [his] name associated with the Democratic party for purposes of the 2014 U.S. Senate race.”

But as Orel’s brief notes, “not wanting to do something is, of course, fundamentally different from not being capable of doing something. Mr. Taylor’s eleventh-hour change of heart simply is not a valid basis for withdrawal under Kansas law.”

There is no case law in Kansas applying this specific requirement. Kobach, however, cites other state court holdings, including decisions from Texas and California, that have required strict compliance because statutes “dealing with candidacy for political office are mandatory and are to be strictly enforced.” In fact, the California Court of Appeals stated that allowing removal of a candidate’s name from the ballot “encourages undue influence by more powerful candidates, political ‘teams’ who may withdraw in favor of one another, and the deterrence of potential candidates who may consider the race overcrowded.” This seems to be a perfect description of the political machination at play in Kansas.

The Elections Clause of the U.S. Constitution provides that the time, place and manner of federal elections are delegated to state legislatures unless Congress intervenes. Thus, Kobach cautioned the Supreme Court that it cannot relax the withdrawal requirement imposed by the state legislature.

If this case were decided purely on the law, then Taylor’s writ of mandamus would be dismissed and his name would stay on the ballot. But a Kansas lawyer I talked to was not optimistic: Four of the justices on the court were appointed by former Democratic governor Kathleen Sebelius. Yes, the same Kathleen Sebelius who headed the Health and Human Service Department until this past April and was in charge of implementing Obamacare.

If the court does grant his withdrawal, the voters who put Taylor into office as a district attorney might want to seriously consider whether he has also declared himself “incapable” of serving in that office.

— Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and coauthor of “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).

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