Kansas Supreme Court weighing Taylor’s ballot withdrawal

Democrat Chad Taylor, left, talks to his attorney Pedro Irigonegaray after arguments before the Kansas Supreme Court in Taylor's petition to remove his name from the ballot after he withdrew from the U.S. Senate race Tuesday, Sept. 16, 2014, in Topeka, Kan. Taylor's attempt to remove his name from the ballot has been disputed by Kansas Secretary of State Kris Kobach, a Republican, who backs incumbent Sen. Pat Roberts. Taylor's withdrawal from the race potentially improves the chances of independent candidate Greg Orman defeating Roberts.

Kansas Secretary of State Kris Kobach listens to arguments before the Kansas Supreme Court in a petition by Democrat Chad Taylor to remove his name from the ballot after he withdrew from the U.S. Senate race Tuesday, Sept. 16, 2014, in Topeka, Kan. Kobach, a Republican, ruled that Taylor's name must remain on the ballot because he didn't comply with state election law.

? The Kansas Supreme Court is now weighing whether Democrat Chad Taylor’s name should remain on the ballot for U.S. Senate.

Taylor, who won a contested Democratic primary on Aug. 5, has since declared that he no longer wants to remain on the ballot. But Kansas Secretary of State Kris Kobach has refused to honor that request, arguing that Taylor failed to declare, as required by law, that if elected he would be unable to fulfill the duties of the office.

Although Taylor did not give a specific reason for dropping out of the race, most analysts believe his withdrawal makes it more likely that three-term incumbent Republican Pat Roberts could be defeated this year by the better-financed independent candidate Greg Orman.

And that, in turn, could affect the Republican Party’s chances of taking control of the Senate in 2014.

During oral arguments before the court on Tuesday morning, Chief Justice Lawton Nuss indicated there are other, more basic issues at stake, namely whether leaving Taylor’s name on the ballot would be unfair to voters.

“I know it’s hard for people in this courtroom to understand, but there are some voters in Kansas who are not breathlessly watching today’s proceedings,” Nuss said from the bench. “He (Taylor) has declared in his affidavit that if elected he will not serve,” Nuss said. So my question to you is, if we keep his name on the ballot, are we then negating the votes of those folks who might vote for him?”

That question went to the heart of Kobach’s main argument, which was that allowing Taylor to withdraw would effectively disenfranchise the 35,000 Democratic voters who supported him in the primary.

But Kobach’s attorney, Edward Greim, said the more important issue was that Taylor did not follow the letter of the law when he filed a notice with the Secretary of State’s office asking to be taken off the ballot.

“The Legislature has considered these possibilities, and this statute is the balancing of those possibilities,” he said.

Until 1997, Kansas law allowed candidates to withdraw for virtually any reason, even after winning a primary. But that year they changed the law by inserting what attorneys in the case called the “14 magic words.”

The law now says any candidate “who declares that they are incapable of fulfilling the duties of office if elected,” may be taken off the ballot if they file a notarized request with the Secretary of State.

But Taylor’s attorney, Pedro Irigonegaray of Topeka, said Taylor complied with the law by referencing that statute in his withdrawal letter.

“That is his declaration,” Irigonegaray said. “It is important to note that the Legislature did not require that the declaration be either written or in any other form.”

Irigonegaray also argued that the statute does not give the Secretary of State discretion to decide whether a withdrawal has met the standards set out by law, as long as the withdrawal is in “substantial compliance” with the law.

Kobach’s attorney Greim argued that if the court says Taylor’s letter complies with the law, then the statute itself would be meaningless.

The case was heard by the state’s six sitting justices, plus retired Douglas County District Judge Michael Malone.

Malone filled in for the vacancy left when former Justice Nancy Moritz was named to the 10th U.S. Circuit Court of Appeals. Gov. Sam Brownback has appointed his former chief counsel Caleb Stegall to the vacant seat, but Stegall will not be sworn in until Dec. 5.

The court is expected to rule before the end of the week because Friday, Sept. 19, is the deadline for finalizing ballots that are mailed to military personnel and other voters overseas.

If the court rules in Taylor’s favor, the next question will be whether the Kansas Democratic Party will have to name another candidate to fill his spot on the ballot.

Taylor attended the court hearing, but refused to speak with reporters afterwards.

Kobach said he believes the law requires the party to name another candidate, and he said if the party declines to do so, he may go back to court to seeking an order for them to do so.

Party officials so far have taken no steps publicly to recruit another candidate and have declined to say whether they will do so if Taylor prevails in the case.