A panel of judges in Kansas ruled earlier today that the Sunflower State's Democrats need not replace Chad Taylor as their Senatorial candidate.
A copy of this opinion is here. Nothing really unexpected, but when good news comes, you share it.
Case analysis is below the fold, but together with the win in the Fourth Circuit, today has been a good day for voters' rights.
The opinion is relatively straightforward. It lays out the background, which basically begins with Taylor's request to withdraw as a candidate, a request denied by Kansas Secretary of State Kris Kobach. The Kansas Supreme Court reversed Kobach's decision, and directed him to honor Taylor's request to be taken off the ballot.
Immediately after the decision, Kansas voter David Orel brought an action to compel the Democratic Party to name a replacement candidate, arguing that under Kansas law, a withdrawn candidate must (rather than may) be replaced by party officials.
In the interim, absentee ballots without Taylor's name were sent out, with Kobach promising a follow-up letter and new ballot depending on the outcome of Orel's suit. The Kansas Supreme Court assigned the case to a 3-judge panel, which scheduled a hearing for yesterday. Orel did not show up, so the Court decided the case on the papers.
First, the Court held that Kobach did not have a right to "intervene" in the case (i.e. participate as if he were a party). He had no duty to do anything, nor had he suffered any injury, unless and until the Democrats named a replacement candidate. He needed an answer from the Court about whether a replacement would be required or not, but had no stake in the answer. I don't know enough about Kansas law on intervention to offer a definitive opinion on this conclusion, but for what it's worth, I think it's generally a good idea to have the chief statewide election official as a party to a case that involves a statewide election. Enough about that.
On the substantive question, the Court held that Orel lacked standing. Orel claimed in his papers that he had a wish to vote for whomever the Democrats nominated. The Court held this was insufficient. In fact, it has been suggested that Orel is actually a Republican operative, whose son works for the Brownback campaign, and that his lawsuit was not bona fide. In any event, since he didn't show up for his court date, we will never know the answer to that.
But even if Orel had standing, the Court continued, the statute at issue gives primary voters the right to decide who, if anyone, will be a party's candidate; but once the primary has come and gone, it is party officials who get to decide who, if anyone, will be a candidate. Construing the statute in this way, the Court avoided the First Amendment issue that would otherwise have been present; namely, whether it is constitutional for a state to compel a political party to select a nominee over their own objection. I think the answer to that would have been no.
The case is over. Orel (or, for that matter, Kobach) could presumably appeal the intervention, standing, or substantive decisions, but I agree with Professor Hasen who says that such an exercise would be a "fool's errand."