With four of its seven justices appointed by former Democratic Gov. Kathleen Sebelius, the Kansas Supreme Court last week decided to permit the Democratic nominee for U.S. Senator to withdraw from the November ballot after all.
In so doing, the court overturned an earlier ruling by Kansas Secretary of State Kris Kobach that Shawnee County District Attorney Chad Taylor had not properly followed the letter of the law and was therefore unable to remove his name from the ballot.
“The justices ignored the legislative history and the clear intent of the state legislature,” Kobach told Newsmax over the weekend, “and the justices’ decision contained surprisingly little explanation.”
So, as some polls now show independent candidate and multi-millionaire Greg Orman actually leading Republican Sen. Pat Roberts, the stage is set for what the New York Times called a “wild card” Senate race in the Sunflower State.
Although the ruling of the high court was unanimous and its justices were appointed by governors of both parties, several Republicans in the state pointed out that there is not one truly conservative Republican sitting on the bench.
Along with the four justices appointed by Sebelius, who recently resigned as President Obama’s secretary of health and human services, three others were named by former Gov. Bill Graves, a moderate Republican; the seventh slot on the court is vacant and was filled in this case by senior jurist Michael Malone, a registered Democrat from Lawrence, Kansas who wrote the decision.
Republican Gov. Sam Brownback recently appointed one justice to the court but he will not take office until later in the year.
Two weeks ago, as polls began to show Orman running ahead of Taylor and closing in on Roberts. The Democrat, Taylor, was a distant third and he announced plans to abandon the race.
But as the Sunflower State’s chief elections official, Kobach said no and cited state a statute that for someone to withdraw as a nominee for office, "he or she must formally withdraw no later than seven days after the state Board of Canvassers meets to certify the nominees of the party, and must do so in compliance with the law."
He also pointed to a subsection of that statute which requires a nominee desiring to withdraw to "first, declare in writing his or her inability to fulfill the duties of the office sought and second, to have the request to withdraw notarized. Mr. Taylor did the latter but not the former."
Of the Supreme Court’s ruling overturning this decision, Kobach said that it “effectively nullified what the legislature specifically required a candidate to do short of dying to withdraw as a candidate—namely, declare in writing his inability to perform the duties of office and have that statement notarized. What part of the word ‘declare’ did they not understand?”
Kobach, a on-etime assistant to former U.S. Attorney General John Ashcroft, emphasized that “election laws are meant to be enforced, fairly and strictly. Elections are like football games, public contests where the stakes are very high. The rules are set by the legislature before the game begins and they must be strictly enforced.”
“For the court to simply substitute its own rule for the legislature’s specific language is dead wrong.”
Kobach did, however, make it clear his office had no plans to appeal the ruling of the state jurists to the U.S. Supreme Court.
Now, the Senate race takes yet another twist that is unclear. Under State Statute 25-3905, when a vacancy occurs on the general election ballot, the state committee of the party dealing with the vacancy shall nominate a replacement. Kobach pointed out to that the legislature used the word “shall” and not “may” and, in his words, “that means it has a legal obligation to fill the vacancy.”
“But the Democratic state chairwoman [Joan Wagnon] has said the party won’t do that unless the court tells them to do so. In other words, she is saying that the Democrats won’t follow the letter of the law and nominate a replacement candidate unless ordered by the court—even though the language of the law specifically says [Democrats] ‘shall’ fill a vacancy.
“This is a country governed by the rule of law. The Democratic Party has an obligation—like we all do—to follow the law as it is clearly written and not disobey a law until a judge orders them to follow it.”
At this point, early betting in Kansas is strong that state Democrats will at least offer their nomination to independent Orman, who has hinted he might vote with them to organize the Senate if elected. But if he receives their nomination, then still another statute takes effect that requires a candidate with two nominations for the same office to choose between one or the other.
Since Kansas last elected a Democrat to the Senate in 1932, Orman may well opt to keep his independent status rather than take the nomination of a party with this history.
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