September 25, 2014

September 25, 2014 | Commentary on Elections, Legal Issues

The Kansas Supremes Give Democrats Exactly What They Wanted...Again

At almost the same time as my earlier NRO post was published this morning — asking why the Kansas Supreme Court had not acted on the second writ of mandamus filed last week, which requested that the Kansas Democratic party be ordered to name a replacement U.S. senate candidate — the court acted.

But instead of taking up the matter as it promptly did with the first writ of mandamus that resulted in the Democratic nominee being removed from the ballot, the court instead ordered the writ transferred to a district trial-level court in Shawnee County, Kansas. The court had refused such a transfer with the first writ.

A Kansas lawyer intimately familiar with this case and the makeup of the Kansas Supreme Court told me, “This is clearly an effort by the highly partisan Kansas Supreme Court to delay the petition long enough to ultimately render it moot. It’s a real tragedy to see this sort of judicial activism taking such a prominent role in a national election but, unfortunately, this is the impact of all of these Kathleen Sebelius appointees to the high court in Kansas.”

In the face of its refusal to transfer the first writ to a lower court, the Kansas Supreme Court justified its transfer of the second writ by citing a lack of “sworn evidence necessary to enable this court to make any of a myriad of legal determinations.” But that justification fails because there are no unknown facts or evidence necessary for the court to make a ruling on the second writ.

The case filed by Democratic voter David Orel simply asks the Kansas Supreme Court to order the Democratic party to comply with K.S.A. §25-3905(a), which states that “[w]hen 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.” The only “fact” at issue is whether there is a vacancy in the U.S. Senate race. The Supreme Court knows there is a vacancy because the court created it when it ordered the Democratic candidate, Chad Taylor, removed from the ballot!
 
The court also tried to justify the transfer by stating that it lacks the evidence necessary to decide the “ripeness” of the issue. Given that the general election is only a month away and the question before the court involves what candidates should be listed on the ballot, which must then be printed and distributed, what could be riper for judicial review?

Contrary to the court’s assertion, standing is also not an issue; state and federal courts almost always give voters standing in cases that assert claims about the rules governing the election process that affect the voter’s rights. And not enforcing a rule that deprives a Democratic voter of the ability to vote for the Democratic nominee of the party certainly affects Mr. Orel’s rights.

The only question present in this case is a purely legal one: Does the Kansas Democratic party have to comply with the Kansas law that directs it to name a replacement candidate for the U.S. Senate? Yet that legal question is being transferred by the supreme court to a county-level court where it is highly improbable that the issue can be decided (and that decision appealed) in the remaining time before the election.

The completely contrary manner in which the court has handled these two writs is difficult to explain or defend on any basis other than partisanship.

 - 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"