Judges weigh ballot lawsuit after plaintiff fails to show; Kobach not allowed to intervene
Topeka ? A three-judge panel in Topeka is expected to decide within the next day or two whether the Kansas Democratic Party must name a new candidate to replace Chad Taylor on the ballot for U.S. Senate.
But after the petitioner in the case, a Democratic voter named David Orel, failed to show up in court for a hearing Monday, an attorney for the Democratic Party moved to dismiss the case entirely.
“With all due respect to Mr. Orel, he filed a lawsuit against my clients, drug them into court in the middle of a heated campaign season, then thumbs his nose at this court and refuses to show up,” said Randy Rathbun, a former U.S. attorney from Wichita who represented the party.
Orel filed a petition with the Kansas Supreme Court seeking an order for the Democratic Party to name a new candidate. He filed the petition within minutes of the court’s Sept. 18 order that said Taylor must be allowed to withdraw, even though he had given no specific reason for doing so.
But the Supreme Court refused to consider that motion, saying Orel had filed no sworn testimony or evidence to support his claim and that there were facts at issue that had to be heard by a trial court.
The case was then referred to Shawnee County District Court, which appointed a panel of three judges to hear the matter: Judges Larry Hendricks, Franklin Theis and Evelyn Wilson.
Orel’s petition cites a Kansas statute that says when a vacancy occurs on a ballot after the primary election, the party committee “shall” name a replacement. His attorneys argued that without a Democratic candidate, Orel is being denied the right to vote for the Democratic Party’s nominee.
But Democrats argued that the word “shall” in a statute does not always mean that something is mandatory and that legal experts are now advising legislatures not to use the word anymore because its meaning can be vague. They also noted that the law provides no penalty for failure to comply with it.
Although a registered Democrat, Orel is the father of an aide working on Republican Gov. Sam Brownback’s campaign. Orel’s attorney, Tom Haney, of Topeka, said his client had grown tired of the high-profile legal fight.
“He is a private citizen,” Haney said of Orel. “He has had the media banging on his door. … He frankly has had it with the political process.”
Theis, however, appeared irritated at Orel’s failure to appear.
“Without him here, it kind of turns this into political theater,” Theis said.
Democrats also argued that the petition should be dismissed because the secretary of state’s office has already mailed out ballots to overseas military personnel, and some of those ballots have already been returned. An order to name another Democratic candidate, Rathbun said, would require invalidating votes that have already been cast and requiring those voters to cast new ballots.
Hendricks, the presiding judge on the panel, also raised the question of how officials would handle such a case if a soldier deployed in a combat zone were to die in action before he or she was able to cast a second ballot.
Republicans have been eager to make sure there is a Democratic candidate on the ballot because there is also an independent candidate on the ballot, Greg Orman, who has been polling even with, or ahead of, three-term incumbent Republican Sen. Pat Roberts. Having two major opponents on the ballot would divide the anti-Roberts vote and reduce the number of votes he needs to win re-election.
And while Democrats have not publicly stated why Taylor withdrew and have not publicly endorsed Orman, they have resisted legal efforts, mainly by Republicans, to force them to name another candidate.
Rathbun said that was because, with only five weeks remaining before the Nov. 4 election, it would be a hopeless race that would only drain resources away from other races on the ballot.
Before hearing arguments on the petition, the panel rejected a motion by Kansas Secretary of State Kris Kobach to intervene in the lawsuit. Kobach had said his office needed to be before the court because it must certify the names on the ballot and direct county election officials to print ballots.
But Hendricks said the court could issue its orders with or without Kobach involved in the case and that there was no benefit to the court in having his office intervene.
Kobach had urged the court to make its ruling no later than 1 p.m. Thursday to give county officials time to print ballots.
Advance voting begins on Oct. 14.