By John Celock
The debate over Kansas’ U.S. Senate race now rests in the hands of the state Supreme Court, after attorneys from both sides argued whether the Democrat still belongs on the ballot.
Democrat Chad Taylor’s attorney, Pedro Irigonegaray, argued Tuesday morning that he complied with state law when he withdrew from the Senate race earlier this month, resting the argument on the language he used in his letter complied with the state law requiring he state that he is incapable of serving. An attorney for Secretary of State Kris Kobach (R) argued that Kobach has discretion to reject Taylor’s letter since he did not specifically state an incapability. Kobach has rejected Taylor’s letter and has kept the Democrat on the ballot in the competitive race that could decide control of the Senate.
“The Legislature did not require the declaration to be written or in any other form,” Irigonegaray told the court. “The Legislature certainly in election law has on numerous other statutes set forth numerous other requirements for a declaration.”
The debate centers on a portion of Kansas election law that requires candidates withdrawing after the primary to state that they are incapable of serving. Kobach, after consulting with his staff attorneys and state Attorney General Derek Schmidt (R), that Taylor not including an incapability statement means he remains on the ballot in the race against U.S. Sen. Pat Roberts (R-Kan.) and independent Greg Orman. Kobach had argued earlier this month that Taylor, the Shawnee County district attorney, should have known the legal requirements.
Irigonegaray on Tuesday though argued that the Democrat citing “pursuant to” and naming the statute number means he said that he was citing he incapable. Irigonegaray said that “pursuant to” provided the sufficient requirements for the law. He told justices that the law does not require the candidate to specify why they are incapable or any other reasons.
Irigonegaray also said that the law does not give Kobach the ability to exercise discretion in this matter.
“There is no basis in the law for the secretary to reject the letter. If the Legislature wanted to delegate to the secretary they could have,” Irigonegaray said. “The secretary’s authority under the law, he is not allowed to reject the letter.”
Kobach’s attorney, Ed Greim, said that he does have the discretion to make a decision over whether or not to accept the letter, even if it is not specifically written into the law. He said that as the executive in charge of enforcing the law, Kobach is given discretion in terms of enforcement.
“He needs to have discretion when someone doesn’t just use the language of the statute,” Greim said.
Greim said that Taylor’s decision to cite the law and use the words “pursuant to” does not mean that Taylor declared an incapability to serve, but rather asked Kobach to remove him from the ballot. He said that Taylor would have needed to either declare himself incapable of serving, cite the 14 words that have been in state law since 1997 or describe why he is incapable of serving.
Both sides centered on a letter submitted earlier this month by Democratic state House candidate Miranda Rickel to withdraw from the race. Rickel did not specifically say that she was incapable but describe reasons for being incapable of serving, including being a student and her work schedule. Kobach’s attorney said the description provided why Rickel could not perform the duties of the office if elected, while Taylor’s attorney said that Kobach showed he would accept a letter that did not specify the word incapable.
Under questioning from the court, Kobach’s attorney said that the only person a declaration of being incapable can be made to is the secretary of state. Taylor’s side has argued that the Democrat has been public about deciding not to continue his Senate campaign.
“The declaration cannot be made at home to someone’s goldfish,” Grei, said. “It must be made to the official in charge of the process.”
The justices did not indicate when they would deliver a decision. Kobach said that military ballots need to be mailed out by Sept. 20 and the deadline to get the military ballots to the printer is Sept. 17. Questioning by the court was more intense for Greim than for Taylor’s side, with justices questions how much discretion should be offered to the secretary of state.
Taylor has argued that the letter was accepted by two of Kobach’s top aides, charges that both have denied. Kobach has cited past letters to his office that included incapability declarations. The incapability law was written by state lawmakers in 1997 to address the practice of placeholder candidates being placed on the ballot.
Taylor withdrew from the race after lagging both Roberts and Orman in fundraising. He found himself under fire from Democratic women following a decision several years ago to stop prosecuting domestic violence cases citing budget cuts to his office.
Democrats have begun to rally behind Orman in the Senate race, with the independent being competitive or leading Roberts in recent polls. Kansas has not elected a non-Republican to the U.S. Senate since 1932.
The debate over Taylor’s withdrawal is the latest in a series of turns that has turned what was expected to be a quiet race into one of the most competitive in the nation. Roberts faced questions during his Republican primary against Tea Party favorite Milton Wolf over whether he lives in Kansas or in the northern Virginia suburbs outside of Washington, D.C. At the same time, Wolf, a physician and cousin of President Barack Obama, was attacked over his posting of graphic x-rays of gunshot victims on Facebook.
Since Taylor’s withdrawal, Roberts’ campaign has undergone a shake-up with Washington-based political operatives being put in charge of the campaign and longtime Roberts’ advisor Leroy Towns quitting. Other Roberts aides have been dismissed from senior roles or reassigned to other duties.