[EL] new KSSEN lawsuit

[Mark Schmitt]

"Why can’t the party just nominate Pat Roberts or Kris Kobach?"

The party can't nominate Pat Roberts because Kansas doesn't allow 
fusion. For the same reason, it can't nominate the candidate it really 
favors, Greg Orman. (Although he might be better off without the 
Democratic line.)

Kansas is one of several states where the elimination of electoral 
fusion around the turn of the 20th C. helped the Republican Party 
consolidate its control, by preventing the Populist Party (which was 
very strong in Kansas) from joining with the Democratic Party to win 
elections.

------ Original Message ------
From: "Rick Hasen" <rhasen at law.uci.edu>
To: "law-election at UCI.edu" <law-election at uci.edu>
Sent: 9/19/2014 2:01:25 PM
Subject: [EL] new KSSEN lawsuit

>In #KSSEN, Supreme Court Unlikely to Force Democrats to Pick a 
>Candidate to Replace Taylor
>Posted on September 19, 2014 10:32 am by Rick Hasen
>A new lawsuit 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.
>
>Posted in campaigns
>-- 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.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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