[EL] new KSSEN lawsuit

[Rick Hasen]

    In #KSSEN, Supreme Court Unlikely to Force Democrats to Pick a
    Candidate to Replace Taylor <http://electionlawblog.org/?p=65672>

Posted onSeptember 19, 2014 10:32 am 
<http://electionlawblog.org/?p=65672>byRick Hasen 
<http://electionlawblog.org/?author=3>

A new lawsuit<http://www.kansas.com/news/local/article2158513.html>has 
been filed directly in the Kansas Supreme Court seeking to force the 
Kansas Democratic Party to name a replacement for Chad Taylor to run in 
the the U.S. Senate race for Kansas. Democrats don't want to name a 
replacement, believing their best chance is to have voters voter for 
independent Greg Orman over incumbent Republican Pat Roberts. The suit 
was filed by the son of a campaign official for Brownback.

I have reviewed the memorandum filed in support of the writ of mandamus, 
and it is very barebones and straightforward. It points simply to a 
state statute which says that when a candidate withdraws the party 
"shall" name a replacement. It asks the Kansas Supreme Court or order a 
replacement.  There are a few reasons to believe the Court won't do so.

1. There's a textual argument that "shall" means may and not must.  The 
Kansas Supreme Court put everything into a narrow textualist argument in 
the Kobach v. Taylor case and they could easily do so here, especially 
if the Justices are otherwise inclined to rule against this. There are 
other textual arguments too which I may get into later.

2. There seems to me to be a very strong First Amendment claim of the 
party not to choose a replacement.  There are a number of races in KS 
where Democrats or Republicans are not choosing a candidate. To require 
a political party to pick a candidate when it doesn't want to do so 
seems to interfere with the right of a political party.  The memorandum 
does not address this point, but I expect any Democratic Party response 
will do so.

3. Further, this seems really self defeating.  Why can't the party just 
nominate Pat Roberts or Kris Kobach?  Or is the claim that the Court 
must order the Democrats to choose a "serious" or "legitimate" 
candidate.  Who is going to enforce that?

4. Finally, we are moving against the printing deadline and the federal 
MOVE Act which protects the ability of military and overseas voters to 
get their ballot on time.  Kobach is now trying to stretch those 
deadlines, but if this drags on, there is a serious risk of 
disenfranchising military voters.  It doesn't seem the Court would want 
to do so.  Nor does it seem politically good for Republicans to do so.

In short, I expect this case to be a loser, sooner or later.

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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
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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