Democrat Chad Taylor’s attempt to withdraw from the U.S. Senate race is not without precedent in Kansas, and at least one former legislator who helped rewrite the law says what he is attempting to do is precisely what Kansas lawmakers tried to prevent when they changed the state’s ballot law in 1997.

Deena Horst, a Republican from Salina who now serves on the Kansas State Board of Education, served in the Kansas House in 1997 and helped draft the language that the Kansas Supreme Court is now being asked to interpret.

At issue is a law that says if candidates have been nominated for a state or federal office and later want to withdraw from the race, they must declare that, if elected, they would be incapable of fulfilling the duties of that office.

“Although it may not clearly state such, it was the original intent than an individual withdrawing would have to show why he or she could not serve,” Horst recalled. “It was believed that by having to declare why he or she was unable to serve, a candidate would not just remove their name from the ballot without a reason that voters would accept, and that party manipulation of the electorate was less likely to take place.”

Taylor won a contested primary for the U.S. Senate nomination. But he has since terminated his campaign and asked that his name be taken off the ballot. However, Kansas Secretary of State Kris Kobach has refused to honor that request, saying Taylor did not declare that, if elected, he would be unable to serve.

Taylor is now asking the Kansas Supreme Court to intervene. Oral arguments will be heard starting at 9 a.m. Tuesday, with a ruling expected before the end of the week, which is the deadline for printing ballots to be sent to military and overseas voters.

Although he has not publicly stated why he wants to withdraw, most observers say doing so would help the better-funded independent candidate Greg Orman in his quest to unseat three-term incumbent Republican Sen. Pat Roberts.

But Horst, as well as Senate Democratic Leader Anthony Hensley, who also was in the Legislature at that time, said the change followed the 1996 campaign in which a slightly different practice had become commonplace in Kansas.

That involved putting up “place-holder” candidates to fill a spot on the ballot until the filing deadline, after which party leaders would then name the real candidate they wanted to run.

“That was pretty common practice, really by both parties as I recall,” Hensley said. “But I think in the ’96 campaign it occurred more than it previously had.”

“We would try to recruit somebody for the House or the Senate, and we couldn’t get a person to pull the trigger before the filing deadline, so we would get someone to file and hold that seat,” Hensley said. “Then you had to have a meeting of the precinct people in that particular district to replace the place-holder.”

Horst agreed that the practice of naming place-holders was what prompted lawmakers to consider changing the law. Before the change, candidates could withdraw from the ballot for virtually any reason. But in the course of discussing that change, she said, lawmakers envisioned the possibility of what Taylor is now trying to accomplish.

“Although it had not happened to that point, at least to our knowledge, we also realized that such an open-ended withdrawal policy could be used for the purpose of defeating an incumbent or a candidate of a party which held the larger number of voters,” Horst said. “Part of our discussion, as I recall, was that such a feat could be accomplished by one party lending assistance to a lesser party candidate – Libertarian, Reform, etc. — or unaffiliated candidate by the withdrawal of the individual selected in the primary by the registered voters of that party.”

“Since that type of thing hadn’t happened previously, many of us thought such a potential to be far-fetched, that Kansans were more ethical than that,” Horst said.

Taylor, the current Shawnee County District Attorney, is claiming that the law doesn’t require him to state the nature of his inability to hold the office of U.S. Senator, only that he make the declaration. He also says he effectively made that declaration when he asked to withdraw, “pursuant to” the statute in question, and any interpretation of the statute that says he must remain on the ballot would be unconstitutional.

But Kobach says that’s not good enough and that Taylor’s name should remain on the ballot.

Regardless of how the court rules, Hensley said the Legislature needs to revisit that law.

“It’s poorly worded,” Hensley said. “It’s bad public policy and we need to change it. But I don’t have any real good ideas about how to do that yet.”