Kansas Secretary of State Kris Kobach’s refusal to remove Democratic Senate nominee Chad Taylor from the ballot came under harsh scrutiny Tuesday from the Kansas Supreme Court, with some of the justices openly wondering whether the Republican official was arbitrarily applying the law.
At stake is whether Taylor, who attempted to withdraw earlier this month, will have his name appear on the ballot in November. That decision could swing the race between independent candidate Greg Orman and Republican incumbent Sen. Pat Roberts — which could in turn decide which party controls the Senate next year.
The case hinges on whether Taylor adequately declared that he was “incapable” of serving if elected, as required by state law, and what discretion Kobach has to accept or refuse Taylor’s attempted declaration.
Much of the oral arguments focused on a trove of previous withdrawal letters filed by Kobach’s lawyers the day before the hearing. A number of the letters, some of which were accepted by the secretary’s office, seemed to be largely in line with the letter filed by Taylor earlier this month. Some of them also had not been properly notarized, though they were still accepted by Kobach’s office. The resulting questioning centered on how much discretion Kobach has in applying the law.
“It seems pretty loosey goosey. What are we to do with that?” Justice Dan Biles said to Kobach’s lawyer Ed Greim. “It seems like the legislature put some requirements in the statute, and you guys are deciding whether you want comply or not on an ad hoc basis almost.”
Taylor’s lawyer, Pedro Irigonegaray, had argued earlier in the hearing that his client’s letter was sufficient because he said he was withdrawing “pursuant to” the relevant state law.
During Greim’s time before the court, after Biles said that Kobach’s office seemed to be applying the law arbitrarily, Justice Carol Beier pressed Greim on whether Taylor need to be in “full” or “substantial” compliance with state law in order to be removed from the ballot.
“Does he have discretion to ignore the statute?” Beier asked, referring to Kobach.
Greim said Kobach didn’t, but that he had discretion “to decide whether somebody substantially complied with it.”
“That goes back to my colleague’s original question,” Beier said. “Is it your argument here today that the secretary should be satisfied with substantial compliance as opposed to full compliance?”
“The answer, Your Honor, is substantial compliance means that somebody has complied with the substance, with the key part of the statute, with the reason it’s there, the legislative intent,” Greim said. “Then yes.”
“So substantial compliance is the standard that should be used by this court?” Beier said. “As opposed to to-the-letter full compliance?”
“Well, that depends on the specific part of the law that we’re talking about,” Greim said.
“He has discretion on which parts of the law he has to comply with?” Beier said. “Does the secretary have the discretion to decide which parts of the law must be compiled with and which can be dismissed?”
“He has discretion to say whether someone has declared that they are incapable or not,” Greim said.
“There are at least four or five letters of the letters you submitted without any kind of acknowledgement,” Beier said. “Is he also vested with discretion to ignore that aspect?”
The exchange was indicative of the justices’ overall apparent skepticism about Kobach’s arguments, based on their interrogation of Greim. Irigonegaray was also faced with some tough questions, particularly on the lack of any explicit language from Taylor that he was incapable of serving, but Greim was questioned for a substantially longer time by the court.
Court watchers like the University of California-Irvine’s Rick Hasen believe that, based on Tuesday’s hearing, Taylor’s name will be removed from the ballot.
“While it is always hazardous to predict outcomes from oral argument (because Justices sometimes ask rhetorical questions or minds change after argument),” Hasen wrote on his blog, “I think it is likely the Justices will quickly issue an order removing Taylor’s name from the ballot.”