[EL] KSSEN ruling; still more news

Wed Oct 1 11:53:55 PDT 2014

    Breaking: In #KSSEN, Dems Do Not Need to Replace Chad Taylor on
    Ballot <http://electionlawblog.org/?p=66159>

Posted onOctober 1, 2014 11:33 am 
<http://electionlawblog.org/?p=66159>byRick Hasen 
<http://electionlawblog.org/?author=3>

In a 22 page, unanimous 3-judge decision 
<http://electionlawblog.org/wp-content/uploads/kssen-3-judge.pdf>, a 
Kansas court has ruled that the Kansas Democratic party need not name a 
replacement for Chad Taylor who withdrew from the U.S. Senate race. This 
ruling is unsurprising,<http://electionlawblog.org/?p=65779>given how 
many hurdles were before the court including issues of timing and the 
printing of ballots, the First Amendment rights of political parties, 
and questions about the standing of plaintiff David Orel, who calls 
himself a Democrat but did not appear at the hearing and gave no written 
testimony. I believe this is the end of the road for this case, given 
that SOS Kobach represented that ballots must go to print today---though 
it would not surprise me if Kobach or Orel try to go to the Kansas 
Supreme Court for relief.

The trial court's opinion was straightforward and had three parts.

1.SOS Kobach had no right to intervene in the case under the statutes, 
and there was no good reason to let him permissively intervene.  In a 
dig at Kobach, the court writes: "The only remaining interest of the 
Secretary is that he has an opinion that comports with that of the 
Petitioner, Mr. Orel....He has no stake in the answer itself in his 
capacity as Secretary of State, only the timely need for an answer."

2. Mr. Orel lacks standing. Because he did not appear and did not given 
any sworn testimony, who knows what his interests are and how they 
differ from anyone in the general public?  (My guess is that Orel, whose 
sone works on the campaign for Republican gov. Brownback, expected this 
case to get decided on the pleadings in the Kansas Supreme Court, and 
did not want to be subjected to examination under oath about whether 
he's a Democrat, who is paying his legal bills, etc. This was clearly an 
action intended to benefit the Roberts (Republican) campaign.)

3. Even if the court reached the merits, it would rule against Orel. The 
statute provides that in the event of a vacancy the party "shall" name a 
replacement. The court read this as being permissive not mandatory, 
citing earlier Kansas cases construing the word "shall." Most 
importantly, the court said that it would put a big burden on political 
parties to have to put up a candidacy at this late date--it's a big 
burden, and the Legislature, full of people who are close to political 
parties, would not have intended to force parties to do this against 
their will. (There are hints here of the First Amendment argument I've 
raised, but it is not directly addressed.)

As I said, if there were more time, a possible appeal to the Kansas 
Supreme Court could be a possibility. But to bring it now would be a 
fool's errand, and if Kobach brings it he'll look even more partisan 
than he has looked in this whole mess.

[This post has been updated.]

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Posted incampaigns <http://electionlawblog.org/?cat=59>

    Read Yesterday's Opinion Rejecting Challenge to SEC Pay-to-Play Rule
    <http://electionlawblog.org/?p=66156>

Posted onOctober 1, 2014 10:56 am 
<http://electionlawblog.org/?p=66156>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here. <http://electionlawblog.org/wp-content/uploads/sec.pdf>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>

    "In Wisconsin, a Push for Voter ID Law, But Not Voter IDs"
    <http://electionlawblog.org/?p=66154>

Posted onOctober 1, 2014 10:53 am 
<http://electionlawblog.org/?p=66154>byRick Hasen 
<http://electionlawblog.org/?author=3>

Brendan Fischer blogs 
<http://www.prwatch.org/news/2014/09/12614/voter-id-wisconsin>.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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