[EL] Does the Democracy Canon Support Removing Taylor's Name from #KSSEN Ballot?

[Rick Hasen]

I agree Sean that the two cases are different, and that the Democracy 
Canon's application is less certain in a case like this than the 
Torricelli case.  In the latter case, voters were deprived of a 
Democratic choice on the ballot. In this case, the only danger is the 
lesser one of voter confusion.

Indeed, it may be that the stronger argument to allow Taylor to resign 
is (if Taylor's affidavit is to be believed) an estoppel argument, based 
upon assurances he was given by the election division that his letter 
was acceptable as a means of withdrawing. (There are all sorts of 
complications about applying estoppel to the government, I know).

Further, I do have questions about why SOS Kobach recused in an earlier 
decision involving this same race based upon his service on Sen. 
Roberts' reelection committee but did not recuse at this time.

Rick



On 9/10/14, 6:21 AM, Sean Parnell wrote:
>
> One concern with the Democracy Canon and the idea that Taylor should 
> be allowed to remove himself from the ballot, over the objection of 
> the state officer whom I presume has the authority and discretion to 
> make a determination, is that it would seem to encourage and enable a 
> variety of political stunts, backroom dealing, and gamesmanship that I 
> suspect will over time tend to lessen the public's trust in the 
> political process.
>
> One obvious scenario is that it would allow a political party to 
> essentially put two candidates on the ballot early on, one on the 
> official line the other on either an independent/unaffiliated line or 
> on the line of a sympathetic third party, and then make their real 
> pick late in the game, pressuring the candidate who isn't doing as 
> well to drop out. That's probably not as much of a problem for states 
> with late primaries, but in states that chose their candidates for the 
> fall in the spring (as about half of all states do 
> <http://www.ncsl.org/research/elections-and-campaigns/2014-state-primary-dates-and-runoff.aspx>, 
> according to NCSL -- technically two of them choose in late winter) it 
> isn't difficult to see this scenario being employed for no other 
> reason than the party deciding their better off with someone other 
> than whomever was chosen in the primary (which pretty much seems to be 
> the case here in Kansas).
>
> I'd also note, with apologies to Rick if I'm mistaken in the 
> application of the Democracy Canon, the interesting split between this 
> case and 2002 with Torricelli -- in Kansas the Democracy Canon 
> requires depriving voters of a Democrat on the ballot, while in 2002 
> it apparently meant ensuring that there was a Democrat on the ballot.
>
> The bottom line is, I see much mischief ahead if as a general rule we 
> wave off statutory requirements and the exercise of discretionary 
> authority by officeholders elected to exercise that discretionary 
> authority, essentially in order to satisfy the political cravings of 
> the moment. Just as Republicans were stuck with Akin even after it was 
> fairly apparent he was not viable candidate, it appears to me that 
> Democrats should be stuck with having a Democrat on their ballot line 
> that they perhaps would prefer not be there.
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
> Posted incampaign finance <http://electionlawblog.org/?cat=10>
>
>
>     Does the Democracy Canon Support Removing Taylor's Name from
>     #KSSEN Ballot? <http://electionlawblog.org/?p=65200>
>
> Posted onSeptember 9, 2014 9:18 pm 
> <http://electionlawblog.org/?p=65200>by*Rick Hasen* 
> <http://electionlawblog.org/?author=3>
>
> Taylor makes essentially that argument in the memorandum 
> <http://www.kansas.com/news/politics-government/election/article2044679.ece/binary/Chad%20Taylor%20memorandum%20in%20support%20of%20petition.pdf> supporting 
> the writ of mandamus filed in the KS Supreme Court.
>
> I think that's probably right. What good does it do to give voters the 
> choice of a candidate who has attempted to withdraw and who has 
> pledged not to serve?  So to the extent the statute is ambiguous about 
> what was required for Taylor to withdraw, theDemocracy Canon 
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476>suggests 
> interpreting it to allow Taylor to withdraw. In some ways this is like 
> the Samson case from New Jersey Torrecelli which I discuss in detail 
> in the article: a State supreme court has to construe a statute about 
> how to deal with a withdrawing candidate shortly before the time of 
> printing of ballots.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65200&title=Does%20the%20Democracy%20Canon%20Support%20Removing%20Taylor%E2%80%99s%20Name%20from%20%23KSSEN%20Ballot%3F&description=> 
>
>

-- 
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
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rhasen at law.uci.edu
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