September 24, 2014

September 24, 2014 | Commentary on Elections, Legal Issues

The Kansas Supreme Court Gives Democrats What They Want—But the Fight May Not Be Over

Late yesterday, the Kansas supreme court granted the writ of mandamus filed by former Democratic U.S. Senate candidate Chad Taylor and ordered Kansas secretary of state Kris Kobach to remove Taylor’s name from the November ballot. But the controversy may not yet be over because of another writ filed by a Democratic voter.

The court dismissed Kobach’s claim (explained in an earlier NRO post) that Taylor failed to comply with the state statute (K.S.A. 25-306b(b)) that requires a candidate who wants to withdraw to certify that “they are incapable of fulfilling the duties of office if elected.” Taylor sent a letter to Kobach that simply said that he was requesting that his name be “withdrawn from the ballot, pursuant to K.S.A. 25-306b(b).”

However, the Kansas court held that Taylor had complied with the statute. In what most lawyers would consider quite a stretch of logic, the justices claimed they were interpreting the “plain meaning” of the statute when they concluded that “Taylor’s letter effectively declares he is incapable of fulfilling the duties of office if elected” since he “incorporated” a reference to the statute in his letter. Because the Kansas Democratic Party was not a party to Taylor’s mandamus action, the court refused to rule on Kobach’s “allegation that a ruling for Taylor would require the Kansas Democratic Party State committee to name his replacement nominee per K.S.A. 25-3905.”

However, almost immediately after the Kansas supreme court issued this order, the same Democratic voter who had filed an amicus brief in the original mandamus action, David Orel, filed his own writ of mandamus seeking an order from the court requiring the Kansas Democratic Party to name a replacement for Taylor on the ballot. Under K.S.A. 25-3905(a), “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.”  

If the Kansas supreme court applies the “plain meaning” of the statute, as they claim to have done in Taylor’s case, then they will note that the statute says that the vacancy “shall” be filled — it is not an option for the political party. As Orel says in his brief, “By its plain terms, therefore, the statute imposes unequivocal and mandatory duties” on the Democratic Party “from which they have no discretion to depart.” Orel also points out that he sent a letter on September 16 to the Kansas Democratic Party asking if the party would comply with this requirement, but he received no answer.

Obviously, the Kansas Democratic Party doesn’t want to answer his letter or lose this second mandamus action because the whole point of this political manipulation of the nomination process was to clear the field for the supposed “Independent” in the race, Greg Orman, a contributor to Barack Obama and the DSCC. Orman and Taylor were splitting the Democratic vote against the incumbent Republican senator, Pat Roberts. In fact, as Orel notes, Joan Wagnon, the chairwoman of the Kansas Democratic Party, told the Associated Press that the party had no intention of naming a replacement for Taylor unless “the court tells me to do something.”

The court will have to move very quickly because the federal deadline for sending out ballots to overseas military and civilian voters is September 20. However, the Justice Department in the past has been flexible on this deadline when these types of candidate issues have arisen as long as overseas voters are given extra time to get their ballots back to state election officials.

So the Democrats won the first round in their desire to get rid of the no-longer-wanted Democratic candidate on the ballot, which has to be one of the oddest developments in this year’s mid-term elections. Whether they will win the second round of their effort to rig the process remains to be seen.

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in NRO's "The Corner"