# I pit Kris Kobach **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 5, 2014, 7:25am UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561 "2014-09-05T07:25:37Z")\ **Posts on this page:** 20\ **Page:** 19
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 18, 2014, 11:02pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/361 "2014-09-18T23:02:33Z")
> [@Richard\_Parker](#): > > What do I win? You get to gloat to **Bricker**. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [September 18, 2014, 11:11pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/362 "2014-09-18T23:11:41Z")
> [@Frank](#): > > If it’s true (as he claimed, according to the decision) that ballots have to be printed tomorrow, there’s no time for that. Apparently, [he lied](http://www.kansas.com/news/politics-government/election/article2155489.html): > [@](#): > > In response to the ruling, Kobach said a separate statute protects the “rights of Kansas Democrats” to have a replacement candidate. He said he would move the mailing date for absentee ballots to Sept. 27 and that the chair of the Democratic Party has been informed she has eight days to select a replacement candidate. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 18, 2014, 11:15pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/363 "2014-09-18T23:15:36Z")
“…this Court finds Secretary of State Kobach’s case to be well reasoned and solidly supported in statute and in case law, but we find against him anyway, because he was being a total dick about the whole thing and we had to spend two days on this piece of shit…” They can’t actually do that, right? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 18, 2014, 11:29pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/364 "2014-09-18T23:29:12Z")
> [@Richard\_Parker](#): > > They went with my argument about declaration by reference, it seems. > > What do I win? Wow. Well, not a mention about deference or an acknowledgement of ambiguity. I couldn’t have been more wrong if I were the Mayor of Wrongville. A post I shall have to keep in perpetuity because I won’t be able to get my name off the ballot. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [September 19, 2014, 4:06am UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/365 "2014-09-19T04:06:30Z")
Republican blasts the court for not letting voters vote for the man who doesn’t want to serve: [QUOTE=Roberts campaign manager Corry Bliss] This is not only a travesty to Kansas voters, but it’s a travesty to the judicial system and our electoral process. [/QUOTE] ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [September 19, 2014, 12:52pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/366 "2014-09-19T12:52:49Z")
A new lawsuit in the case. A Democrat is suing to have a replacement candidate. Of course this Democrat happens to have family connections to the governor (his son works for the governor): > **[New lawsuit filed in dispute in Kansas Senate race](https://www.kansas.com/news/local/article2158513.html)** > > A registered Democratic voter has filed a new petition with the Kansas Supreme Court asking it to force the party to name a new nominee for the U.S. Senate. I haven’t seen the text of the law, but apparently the law states that in this scenario, the party “shall” nominate a replacement, which Kobach is interpreting to mean “must” nominate a replacement. “Shall” seems ambiguous in this regard to me. Is there a legal definition of “shall”? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 19, 2014, 1:01pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/367 "2014-09-19T13:01:50Z")
> [@Fiveyearlurker](#): > > A new lawsuit in the case. A Democrat is suing to have a replacement candidate. Of course this Democrat happens to have family connections to the governor (his son works for the governor): > > [http://www.kansas.com/news/local/article2158513.html](http://www.kansas.com/news/local/article2158513.html) > > I haven’t seen the text of the law, but apparently the law states that in this scenario, the party “shall” nominate a replacement, which Kobach is interpreting to mean “must” nominate a replacement. “Shall” seems ambiguous in this regard to me. Is there a legal definition of “shall”? Usually, “shall” is mandatory and “may” is discretionary. But my track record for Kansas is poor, so: I have no clue what it might mean in Kansas. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [September 19, 2014, 1:21pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/368 "2014-09-19T13:21:37Z")
Googling around (which shows the extent of my legal knowledge) finds a lot of evidence that “shall” is discretionary depending on context: > **[shall](https://legal-dictionary.thefreedictionary.com/shall)** > > Definition of shall in the Legal Dictionary by The Free Dictionary > **[plainlanguage.gov | Shall and must](https://www.plainlanguage.gov/howto/wordsuggestions/shallmust.cfm)** > > Plain language makes it easier for the public to read, understand, and use government communications. and that law makers should stop using “shall” because it is ambiguous: > **[Shall We Abandon Shall?](https://www.abajournal.com/magazine/article/shall_we_abandon_shall/)** > > The ABA Journal is read by half of the nation's 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [September 19, 2014, 1:33pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/369 "2014-09-19T13:33:54Z")
Is there a rule that says that the nominee must be a member of the Party? Why not just nominate Orman? ---
**Author:** ![Finagle](https://avatars.discourse-cdn.com/v4/letter/f/b19c9b/32.png) [@Finagle](https://boards.straightdope.com/u/Finagle)\ **Post date:** [September 19, 2014, 1:39pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/370 "2014-09-19T13:39:24Z")
> [@Fiveyearlurker](#): > > A new lawsuit in the case. A Democrat is suing to have a replacement candidate. Of course this Democrat happens to have family connections to the governor (his son works for the governor): > > [http://www.kansas.com/news/local/article2158513.html](http://www.kansas.com/news/local/article2158513.html) > > I haven’t seen the text of the law, but apparently the law states that in this scenario, the party “shall” nominate a replacement, which Kobach is interpreting to mean “must” nominate a replacement. “Shall” seems ambiguous in this regard to me. Is there a legal definition of “shall”? Any reason why the Dems couldn’t nominate the independent candidate if they were forced to name someone? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 19, 2014, 1:46pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/371 "2014-09-19T13:46:43Z")
The “shall” thing is kind of a waste of air. So the Democratic Party is legally obligated to nominate somebody else - so what? Who is going to enforce the requirement. > [@Zakalwe](#): > > Is there a rule that says that the nominee must be a member of the Party? Why not just nominate Orman? Orman may not be willing to accept the Democratic nomination. Or the DPOKS may be less pragmatic about its nominees than we are (“we’ll only nominate a true blue Democrat who has stood with us through hard times”, etc.) ETA: I am [not shocked](http://abcnews.go.com/Politics/wireStory/court-ruling-end-kansas-senate-dispute-25613794) to discover that David Orel really isn’t interested in voting for a Democratic candidate, even if he is a registered Dem. > [@](#): > > The voter filing the new petition is David Orel, 57, of Kansas City, Kansas. His son, Alexander, is regional Kansas City-area field director for Brownback’s re-election campaign. Kobach and Brownback serve on Roberts’ honorary campaign committee, and the Brownback and Roberts campaigns have offices in the same Topeka strip mall. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [September 19, 2014, 1:47pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/372 "2014-09-19T13:47:52Z")
> [@Finagle](#): > > Any reason why the Dems couldn’t nominate the independent candidate if they were forced to name someone? Well, and a follow up stupid question is would Orman the Democrat be different from Orman the Independent or would their votes be added together? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [September 19, 2014, 1:48pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/373 "2014-09-19T13:48:02Z")
Orman would probably do worse with the “D” by his name, and he probably wouldn’t accept the nomination anyway. I like the idea of finding a guy named “Pat Roberts”. More as a mutually assured destruction kind of thing, though – just to make Kobach back down. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 19, 2014, 1:48pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/374 "2014-09-19T13:48:45Z")
> [@Bricker](#): > > Usually, “shall” is mandatory and “may” is discretionary. > > But my track record for Kansas is poor, so: I have no clue what it might mean in Kansas. C’mon now. It’s possible for the court to disagree with you in a close case without you having to conclude that they’ve abandoned all logic. The [statute](http://www.ksrevisor.org/statutes/chapters/ch25/025_039_0005.html) says in relevant part: > [@](#): > > When a vacancy occurs after a primary election in a party candidacy, such vacancy shall be filled by the party committee of the . . . state. The statute’s purpose appears to be to explain who gets to fill the vacancy, rather than to explain that someone must do so. But I agree that the plain language compels the party committee to fill the vacancy. There is some historical ambiguity in “shall,” but a quick glance at Kansas case law has lots of cases saying “shall” means “must.” Unlike the declaration by reference, I think the Court–assuming it gets to the merits–will have a hard time reading this other than to compel the party to nominate. I suspect, however, that there are successful constitutional challenges to such a law. I don’t think you can compel a political party to nominate someone for office under the First Amendment, and I think it would follow that you cannot compel them to fill a vacancy. ETA: Similarly, I don’t think a party can nominate someone who does not wish to affiliate with the party. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 19, 2014, 1:53pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/375 "2014-09-19T13:53:02Z")
So the committee nominates Orman if they have to. Big deal. He can decline if he wants, but they’ll have done their part under the law. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 19, 2014, 2:22pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/376 "2014-09-19T14:22:26Z")
> [@Zakalwe](#): > > Is there a rule that says that the nominee must be a member of the Party? Why not just nominate Orman? There is a law in Kansas that prevents a candidate appearing in two spots on the same ballot. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [September 19, 2014, 4:57pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/377 "2014-09-19T16:57:18Z")
> [@Terr](#): > > There is a law in Kansas that prevents a candidate appearing in two spots on the same ballot. What? Another law? Sheesh, how many laws does one state need? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 19, 2014, 5:08pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/378 "2014-09-19T17:08:45Z")
Judging by what I saw in the documentary _Tombstone_, more. Yeah, I know it was in Arizona but Dodge City was pretty much the same, right? ---
**Author:** ![Finagle](https://avatars.discourse-cdn.com/v4/letter/f/b19c9b/32.png) [@Finagle](https://boards.straightdope.com/u/Finagle)\ **Post date:** [September 19, 2014, 5:09pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/379 "2014-09-19T17:09:49Z")
> [@Richard\_Parker](#): > > I suspect, however, that there are successful constitutional challenges to such a law. I don’t think you can compel a political party to nominate someone for office under the First Amendment, and I think it would follow that you cannot compel them to fill a vacancy. Well, you can probably compel them to nominate someone, but you probably can’t compel someone to run. So it’s an interesting question as to what happens if the state committee comes back and says “We couldn’t find anyone who wanted to do it.” But realistically, it probably hinges on whether the Dems are forced to put up a candidate in the first place. If it were possible for the Republican to run unopposed, or just against a third party candidate, then I don’t see why the circumstances of having a candidate drop out would \* require\* a replacement. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 19, 2014, 5:15pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/380 "2014-09-19T17:15:48Z")
I’m not sure you can compel them to even nominate someone. First Amendment rights in the electoral context are a bit fuzzy. But there does seem to be an associational right for a party to choose its candidate without state coercion. Granted, compelling them to nominate someone is different from compelling them to nominate someone in particular. But suppose they don’t think that anyone else adequately represents them for this seat? I think there’s enough to at least subject this law to scrutiny as a burden on the party’s right of association. And it’s hard to come up with a legitimate justification for it. If you cannot compel the party to run a candidate, what basis would there be for compelling them to run a replacement? [Previous page](https://boards.straightdope.com/t/i-pit-kris-kobach/697561.md?page=18) [Next page](https://boards.straightdope.com/t/i-pit-kris-kobach/697561.md?page=20)