No, the only reason he got in this position was being faced with the Hobson’s choice of making a non-legally-required[sup]*[/sup] damaging admission or remaining on the ballot.
- According to his theory, anyway.
Or another example:
The court granted Merck’s motion to dismiss for lack of Article III standing.
…
Merck argued that simply buying a product isn’t economic injury. … The court sided with Merck, finding no economic injury. “There is no obvious, quantifiable pecuniary loss that Plaintiff incurred from purchasing a drug that worked for him and did not cause him any harm.”
Certainly looks to me like the court did not assume the plaintiff’s injury just because the plaintiff said so. How does it look to you?
Exactly correct.
It looks to me like the plaintiff alleged that he bought a drug that worked as advertised.
In that case, for the purposes of standing analysis, was it assumed that the injury existed (as you and RNATB insist has to be)? Or did the court decide that the injury didn’t exist?
He didn’t allege an injury.
Neither RNTAB or I are saying that a court will assume an injury exists, period. We’re saying a court will assume that an alleged injury exists. The plaintiff must allege an injury.
Sure he did. The court decided that what he alleged was not an injury.
So… then… he didn’t allege an injury.
That’s a tautology. The court decided that what he alleged was not an injury. Is that a finding of fact?
Well, yes, because all 20 of them would be considering the situation for the first time then and there. A hypothetical politician who spent weeks suffering from a painful medical condition before deciding to withdraw might well consider his televised withdrawal speech sufficient declaration.
No. That’s a conclusion of law.
Yeah, OK. I agree that a such a hypothetical politician who went on TV and said, “Because I suffer from moperitis, even if i am elected, I won’t be able to do the job, so I am withdrawing,” would be justified in thinking he met the terms of the statute.
But that’s because he did, in fact, declare that he couldn’t execute the duties of the office if elected.
Quote, from RNATB: “For standing purposes, the court more or less accepts the assertion that whatever is being complained about is harmful.”
In the case I posted, did the court “more or less accept the assertion that whatever is being complained about is harmful”?
My guess is that the Democrats will try to get some legal order to have Taylor’s name removed from the ballots before they’re sent out. I don’t remember offhand what the distribution date is but it’s in the very near future. So I’m thinking it’s unlikely he will succeed. His name will be on the ballots.
At that point, the Democrats would have to work on getting the ballots recalled and that seems even more unlikely. So Taylor’s name will probably be on the ballots on Election Day.
Anticipating this, I would imagine Roberts’ opponents will push this as a political issue. Taylor, who seems reluctant, will be pushed to become more active, He’ll be asked to make public statements telling voters he’s not seeking votes and endorsing Orman. Maybe they’ll even try to get Milton Wolf to endorse Orman. Orman, Taylor, and others will also be pushing the issue that Kobach is intentionally abusing his office and interfering with the campaign. This will support the secondary goal of Jean Schodorf defeating Kobach in his re-election attempt.
Basically, they’ll concede they don’t have enough time to fight this in the courts so they’ll fight this on the campaign trail. They’ll try to turn this into a “throw the rascals out” campaign. Will it work? I don’t know. Kansas has been a fundamentally Republican state for decades and Roberts and Kobach have the incumbency advantage (plus the power in party in advantage as this situation has demonstrated). On the other hand, if the Republicans were really confident they wouldn’t have bothered trying these shenanigans. It appears they regard Orman as a serious threat to Roberts.
This was a case of “less.” And not to speak for RNTAB, but I suspect he phrased it that way because he didn’t relish typing an extended explanation about the requisite sufficiency of the pleading and wanted to convey the general idea that when the plaintiff alleges an injury, the court will accept that an injury of some kind happened. But this turns on the plaintiff alleging a set of facts which, if true, would constitute an injury.
In other words, the court doesn’t need for you to prove that you lost $100, but you do need to allege that you lost $100. For standing analysis, the court accepts as true your claim that you lost $100 without requiring that you prove the amount.
Why won’t they continue to fight the issue in court? Granted that the issue itself might appear moot, but this is a classic case of “capable of repetition, yet evading review,” that would allow a court to rule despite the seeming mootness of the question.
Or do you think they will?
FWIW: I don’t agree that they (Kobach) wouldn’t have done this anyway.
By accepting a facially deficient letter this time, they’d dramatically weaken their case if another instance came along. For them to say, “Eh, we don’t care, so we’ll accept the letter,” would be a foolish move.
Pretty much, though in hindsight it would have been a lot less effort to type out the whole thing right away.
In the absence of formal adjudicatory procedures this would be Skidmore deference, not Chevron deference. Under Skidmore deference, the agency opinion need merely be duly considered. It can be rejected for not being persuasive. So calling it deference is a bit of a misnomer. Moreover, as far as I can tell Kobach has not explained his reading of the statute. So there’s actually no reasoning to defer to. IOW, the statute would essentially be read de novo by a court.
I don’t think it’s 100% certain that saying, in effect, “I withdraw pursuant to the section of the statute concerning withdrawal for inability to serve” is insufficient. It’s not really semantically any different from declaring an inability to serve, I don’t think. On the other hand, for those people who care about statutory purpose when doing interpretation (:)), presumably part of the point of the statute is having the candidate explicitly and not implicitly declare that he can’t do the job–since no one really wants to say it and be quoted on it unless it’s true.
Because neither side rally cares about the legal issue, which is actually pretty trivial. The real issue is political. Both sides want to influence the outcome of the election in November. The legalities at stake are only a concern to the degree they affect the election. And the court system is unlikely to produce a result in time to affect the election, so neither side really cares what any court decision will be. If this is taken to court, it’ll be with an eye on how the ongoing hearing will affect the election not because of the outcome of that hearing.
Well, Kobach can’t sue for a declaration that he’s right. And I don’t agree that it’s a trivial issue. The legislature specifically amended that law to include the declaration requirement. It’s hard to imagine them being any more precise than they were.
Doesn’t Taylor want to vindicate his legal claim, and perhaps save a future litigant from the depredations of a vengeful Republican Secretary of State?