By Staff Writer
As November 4th draws near, most U.S. Senate campaigns are preparing for the home stretch: honing Election Day operations plans, recruiting poll watchers, and beginning get-out-the-vote activities early and absentee ballots start to appear in voters’ mailboxes. In Kansas, however, the Democratic Party has been forced to contend with a Senate candidate who is actively attempting to drop out of the race perilously close to the finish line, as well as the legal consequences that have ensued as a result.
Shawnee County district attorney and Democratic nominee Chad Taylor submitted papers to remove himself from the Kansas ballot just before the filing deadline on September 3rd; however, Kansas Secretary of State Kris Kobach’s office has said that Taylor’s withdrawal affidavit failed to meet statutory requirements for renouncing his nomination, ruling on September 4th that Taylor’s name must remain on the ballot. Kansas state election law provides that “no person who has been nominated by any means for any national … office may cause such person’s name to be withdrawn from nomination after the day of the primary election.” The only two exceptions to this law are candidates who pass away between the primary and the general election, and candidates who file a written statement that they are “incapable of fulfilling the duties of office if elected” with the Secretary of State. Although Taylor did indeed file a written request to be removed from the ballot, the withdrawal papers did not include such a statement.
In response, Taylor filed suit in the state’s highest court on September 9th seeking an emergency injunction prohibiting Kansas from including his name on the ballot. In his complaint, Taylor invokes his constitutional right to engage—or not engage—in political activity, stating that “[b]y keeping my name on the ballot despite my explicit and timely withdrawal, the Secretary of State is conscripting me to run for office, in violation of my First Amendment rights.” Neither Kobach nor Taylor has invoked binding precedent in Kansas or the Tenth Circuit in their tête-à-tête, but in 1968, New York State’s highest court ruled that individuals—in that case, Eugene McCarthy, an independent—may not be forced to run for office against their will. Ultimately, the Kansas Supreme Court (which recently gained another appointee via Republican Governor Sam Brownback) will need to rule on the merits of Kobach’s statutory argument versus Taylor’s constitutional one. If the high court does rule in Taylor’s favor and grant his request to be removed from the ballot, Kobach has already filed a notice with the court on September 10th stating his intention to force Democrats to pick a new nominee to replace Taylor, an action mandated by a separate Kansas election statute.
Upon Taylor’s withdrawal, Democrats and some Republicans pledged to support independent candidate Greg Orman. As a result, incumbent Republican Senator Pat Roberts—who already had to cope with a bruising primary battle earlier this year—is facing his toughest general election in quite some time: a recent poll suggested that Orman and Roberts are neck-and-neck, and the percentage of self-declared “undecided” voters in the race has skyrocketed. Taylor struggled with fundraising throughout the spring and summer; and The Hill has suggested this as a possible reason why he is seeking to exit the race. Meanwhile, Roberts is attempting to replenish his coffers after depleting them in the run-up to the primary.
Orman himself remains something of a mystery. Although members of both parties have endorsed him, he has not confirmed whether he will caucus with Democrats or Republicans if elected to the Senate—and The New Yorker has reported that Orman has sworn to vote out Senate Majority Leader Harry Reid if given the opportunity.
Ballots must be finalized by September 18th so that Kansas can meet a September 20th deadline to begin mailing them to overseas and absentee voters. Thus, time is of the essence for Taylor’s legal team, which includes experienced Democratic election lawyer (and William & Mary Law School adjunct professor) Mark Elias. In a year when control of the Senate likely hangs in the balance, every seat matters for both Republicans and Democrats. Regardless of the outcome for Chad Taylor, this race—and its accompanying legal challenges—will be an exciting one to watch in the coming weeks.