By John Celock
In a potential blow to Republican hopes to reclaim the U.S. Senate, the Kansas Supreme Court ruled Thursday that the Democratic candidate’s name can be removed from the ballot.
The court ruled unanimously that Democratic nominee Chad Taylor’s letter of withdrawal from the U.S. Senate race qualifies as Taylor declaring being incapable to serve under the law. Secretary of State Kris Kobach (R) had ruled that Taylor could not be removed from the ballot since Taylor did not specifically declare an incapability to serve. Taylor had been challenging U.S. Sen. Pat Roberts (R-Kan.) and independent Greg Orman in the Senate race.
“In light of these authorities, we conclude the plain meaning of “pursuant to K.S.A.25-306b(b)” contained in Taylor’s letter effectively declares he is incapable of fulfilling the duties of office if elected. Simply put, the phrase operates as an incorporation by
reference of this particular requirement contained in subsection (b). See Black’s Law Dictionary 834 (9th ed. 2009) (incorporation by reference is “[a] method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one.”),” the court wrote in the opinion.
The court did not rule on if Democrats need to replace Taylor on the ballot, writing that the Kansas Democratic Party was not a party to the case and that the court does not write advisory decisions. Kobach has announced Thursday that he is giving the Kansas Democratic Party eight days to replace Taylor on the ballot.
Roberts campaign manager Corry Bliss released a statement Thursday blaming the decision on “liberal activist judges” and saying that Democrats in Kansas are being disenfranchised with Taylor being taken off the ballot.
“Today, the Kansas Supreme Court deliberately, and for political purposes, disenfranchised over 65,000 voters,” Bliss said in the statement. “In a bow to Senators Claire McCaskill and Harry Reid, liberal activist Supreme Court justices have decided that if you voted in the Democrat Primary on August 5th, your vote does not matter, your voice does not matter, and you have no say in who should be on the ballot on Election Day. This is not only a travesty to Kansas voters, but it’s a travesty to the judicial system and our electoral process.”
Bliss was citing reports that McCaskill, a Democratic senator from Missouri, had encouraged Taylor to drop out of the Senate race. With Taylor out of the race, the head-to-head matchup of Roberts and Orman has put the three term Republican in jeopardy. Orman is considered to be likely to caucus with Democrats if elected, but he has not indicated which party he would caucus with. Republicans have won every U.S. Senate election in Kansas since 1932. Since Taylor dropped out, Orman has taken a lead in the polls, but Taylor had still been polling as high as 10 percent. Taylor, the Shawnee County district attorney, made the decision to drop out following his loss of support from Democrats, including a group of Democratic women who endorsed Orman citing Taylor’s decision to stop prosecuting domestic violence cases, citing budget cuts.
The Kansas Supreme Court consists of four appointees of former Gov. Kathleen Sebelius (D) and two appointees of former Gov. Bill Graves (R), a moderate Republican. A lower court judge served as an acting justice to fill a vacancy. An appointee of Gov. Sam Brownback (R), a conservative Republican, had not been seated on the Supreme Court in time to hear the Taylor case.
Kansas Republican Party Chairman Kelly Arnold issued a statement Thursday also criticizing McCaskill and Reid’s influence and noted the advice from attorneys close to President Barack Obama in Taylor’s court case. Calling it a “sad day” for Kansans, Arnold criticized the Supreme Court.
“It is depressing to see the state Supreme Court condone political gamesmanship and a national power play to deceive and disenfranchise Kansas voters,” Arnold said in the statement. “The people of Kansas deserve to know the corrupt bargain behind this deal. Discussions with Missouri Democrat Claire McCaskill followed by Harry Reid and Barrack Obama’s personal political attorney representing Taylor are enough to prove the corrupt Democrat bosses controlled this decision and the local Democrats lacked the courage to fight back.”
Arnold also called on Taylor to quit as district attorney, citing what he said is Taylor’s inability to serve based on the ruling.
“Taylor has now admitted he is unfit to serve in any elected capacity and we await his prompt resignation as Shawnee County district attorney. That is quite a sacrifice to carry the rest of his life,” Arnold said. “We hope the liberal political bosses are satisfied and wonder what they promised Taylor as a reward for being a good little Kansas Democrat and quitting.”
The court’s ruling deals a blow to Kobach, who has been cited for his legal skills in his work as secretary of state. Kobach had said that he was keeping Taylor on the ballot, citing what he said was a reading of the 1997 law that said the withdrawing candidate needed to state that they were incapable of serving. Kobach made the ruling after consultation with attorneys in his office and state Attorney General Derek Schmidt (R). Kobach said that Schmidt concurred with him that the law said that Taylor should remain on the ballot. Kobach also noted that previous letters of withdrawal since 1997 had included that the candidate was incapable to serve.
Kobach had also taken a swipe at Taylor saying that as an attorney the Democrat should have known the law.
Taylor and his attorneys argued that his inclusion of “pursuant to” and the citation of the state code in his letter, means that he was stating an incapability. Taylor also said that he sought guidance from Kobach’s staff before drafting the letter and then ran the letter by top executives in Kobach’s office before the letter was filed. Taylor said the Kobach aides had cleared the letter, which he and his campaign manager cited in affidavits to the court. The aides denied that they approved the letter.
Thursday’s decision now complicates GOP efforts to regain control of the Senate, with Kansas becoming a battleground. The Kansas Senate race had been low profile a year ago, with Roberts expected to easily win a fourth term. Roberts has been battling questions over his residency since a February article in The New York Times said that he did not live in his Dodge City home, but rather in the Northern Virginia suburbs of Washington, D.C. Kansas Republicans told The Celock Report in February that Roberts is regularly in the state, but not always in Dodge City.
Roberts defeated Tea Party favorite Milton Wolf, a physician related to President Barack Obama, in August’s primary. Roberts’ primary win came after revelations that Wolf had posted graphic x-rays of gun shot victims on Facebook.
Since Taylor’s withdrawal, Roberts’ campaign has undergone a shake-up with Republican officials in Washington seeking more control over the campaign, including inserting Washington-based operatives, including Bliss, into the campaign. Leroy Brown, a longtime Roberts advisor who was serving as senior campaign manager, quit following Washington seizing control of the Roberts operation. Other aides were fired from the Roberts campaign after Bliss took over.