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

Wed Sep 10 07:49:43 PDT 2014

On the recusal issue, I can't speak to SOS Kobach's decisions, but it does
reinforce my belief that election officials probably shouldn't serve on the
campaigns of other candidates, even in an honorary capacity. If nothing
else, it would take away one of the talking points frequently used to allege
political shenanigans, even if such shenanigans are absent.

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: Rick Hasen [mailto:rhasen at law.uci.edu] 
Sent: Wednesday, September 10, 2014 10:30 AM
To: Sean Parnell; law-election at uci.edu
Subject: Re: Does the Democracy Canon Support Removing Taylor's Name from
#KSSEN Ballot?

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-dat
es-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 in  <http://electionlawblog.org/?cat=10> campaign finance

 <http://electionlawblog.org/?p=65200> Does the Democracy Canon Support
Removing Taylor's Name from #KSSEN Ballot?

Posted on  <http://electionlawblog.org/?p=65200> September 9, 2014 9:18 pm
by  <http://electionlawblog.org/?author=3> Rick Hasen

Taylor makes essentially that argument in the
<http://www.kansas.com/news/politics-government/election/article2044679.ece/
binary/Chad%20Taylor%20memorandum%20in%20support%20of%20petition.pdf>
memorandum 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, the
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476> Democracy Canon
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.

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-- 
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
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