I’m thinking it isn’t likely to really affect much of anything. There may be a small but non-zero number of voters who will see Taylor’s name and vote for him because they don’t know about all this and don’t know that he is effectively not a candidate. Of course, the more noise and fuss about this, the better for the Dems, as that number will get smaller and smaller.
(I saw a poll in passing just recently, which seemed to indicate that Taylor voters have already moved substantially to support the independent. Don’t have it right at hand, but don’t doubt it can be found, if need be…)
This also offers an option to those Republicans who are shocked and scared by how much Republican economic theology has screwed Kansas, but would rather nail their pecker to a tree than vote for a Democrat.
Of course, this is more about trivial matters like an election, and has no real bearing on the all-important issues of precise legalistic clarity.
I suppose its worth mentioning that I think Knoblick will prevail and Taylor’s name will remain on the ballot, a Phallic victory if ever there were one. So, really, the more fuss, feathers and fury, the better.
By keeping my name on the ballot despite my explicit and timely withdrawal, the Secretary of State is conscripting me to run for office, in violation of my First Amendment rights,” Taylor said in a sworn affidavit filed with the court. “I do not want to be a candidate for U.S. Senate in the 2014 election and do not want the ballot for that election to associate me with the Senate race.”
I have to admit that I never considered a constitutional attack against the statute itself.
My confidence in the outcome was premised against an attack on Kobach’s interpretation of the statute. I have not read the affidavit, but that line almost suggests that Taylor is attacking the constitutionality of requiring him to say, “If elected I cannot perform the duties of the office,” before striking his name.
Really? Then I must be a lot more imaginative because I can easily write a more precise law.
“Any person who has been nominated by any means for any national, state, county or township office may withdrawn his or her name from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds. This written request must include a declaration by the person directly stating that he or she would be incapable of fulfilling the duties of the office if elected.”
I’m sure any hypothetical future candidate withdrawing from a race will be sure to follow Kobach’s formula, regardless of whether or not a court orders it. On the other hand, no court decision would prevent some hypothetical future Secretary of State from inventing his own interpretation if the same situation arose. So any court decision resulting from this will be like Bush v Gore - it’ll apply to one election and set no precedents to guide future elections.
Fair enough. I doubt they pictured the need for that specificity when drafting the law, but I admit your version is more precise.
Huh? If an appeals court says that they give no deference to Kobach, but review the thing de novo and say that Taylor’s letter is defective for lack of an explicit declaration, how is that not binding on a future SoS?
Ok, I am going to back away from my confident analysis above, or at least finesse some stuff I said earlier.
When discussing the estoppel issue, I said there was a major hurdle as far as proof. But this filing has not only the affidavit of Taylor, but of two other people who apparently heard someone from the SoS say “Yes,” in response to to question of whether the letter was sufficient.
So (understanding that there may be dueling stories still) that does suggest that proof is possible.
I am beginning to think the estoppel argument may be a winner.
Unless a court decided to write a form which candidates fill their name into, future withdrawing candidates will still have to write their own requests. Which means future Secretaries of State will have to interpret whether those requests are in compliance. Obviously, nobody is going to use the exact same letter Taylor wrote.
So let’s say ten years from now, in an amazing coincidence, the same situation arises. A candidate is withdrawing from the race. He submits the following letter: “I, John Smith, nominee for the United States Senate do hereby withdraw my nomination for election immediately and request my name be withdrawn from the ballot, in accordance with KSA 25-306b(b).” And the Secretary of State (who belongs to the same party as Smith) accepts this letter and withdraws Smith’s name.
The other party will protest, saying “You can’t do that. Remember the Taylor v Kobach decision? It said the candidate had to declare why he was withdrawing in his request.”
And the Secretary of State will say, “Sure, I remember that decision. It said ‘pursuant to KSA 25-306b(b)’ is not an acceptable declaration. But Smith didn’t write that. He wrote ‘in accordance with KSA 25-306b(b)’. And in my opinion as Secretary of State that’s an acceptable declaration of why he is withdrawing. KSA 25-306b(b) only gives one possible reason so any request made in accordance with KSA 25-306b(b) must be using that reason. And as the Taylor v Kobach decision said, the Secretary of State has the authority to interpret what complies with KSA 25-306b(b).”
Or the other scenario. Smith is again withdrawing and submits the following letter: “I, John Smith, nominee for the United States Senate do hereby withdraw my nomination for election immediately and request my name be withdrawn from the ballot. I am doing so because I am incapable of fulfilling the duties of the office if I were elected.” But this time, the Secretary of State (who belongs to the opposing party) refuses to accept the letter and says Smith must stay on the ballot.
And again the other party will protest, saying “You can’t do that. Remember the Taylor v Kobach decision? It said that a candidate must state he is incapable in his request and Smith did that.”
And the Secretary of State will say, “Sure, I remember that decision. But you guys are missing the big picture. The Taylor v Kobach decision said that the Secretary of State can interpret how KSA 25-306b(b) must be complied with. And I’m just going by the clear meaning of the text. Sure, Smith managed to avoid Taylor’s mistake. But he made a different mistake. Read the law. It says the candidate must make his declaration and then submit his written request. Smith made his request for withdrawal and then made his declaration. So he failed to comply with KSA 25-306b(b) as I interpret its clear meaning.”
I’m sorry. But the law specifically states that you must declare that you are “incapable” of performing the duties of the office if elected, not merely that you “cannot” do so.
“In construing a statute, words and phrases should be construed according to the context, and the approved usage of the language and words in common use are to be given their natural and ordinary meaning.” That’s the law in the state of Kansas. Cite: State v. Dubish, 234 Kan. 708 (1984).
“Incapable,” means “lacking capacity, ability, or qualification for the purpose or end in view.” “Able,” is is an antonym. Cite.
“Cannot,” means " to be unable to do otherwise than," Cite.
I’m reminded of the commercial in which the elderly lady is bragging about how she has pictures on her “wall,” and when her friends point out that phrase refers to a Facebook wall, she angrily says to one, “That’s it. I’m unfriending you,” leaving her companion to say helplessly, “That’s not how it works! That’s not how any of this works!”
I really don’t think it’s necessary to reach the estoppel argument. Taylor’s letter cites to the specific statutory provision. You have been drumming the “plain text” beat for a few pages, but it’s hard to see how he has not taken the steps the plain text of the statute requires.
Sure it is. First, Little Nemo correctly points out that the declaration requirement is separate from the requirement of a signed writing. Second, there are no qualifiers in the statute associated with the declaration and there does not appear to be any section further defining that term. Thus, all the statute requires as written is for a candidate to say “I am incapable blah blah blah.” He could say it to his neighbor, his dog, or his therapist, as far as the plain text is concerned.
Note in particular that the statute uses distinct terms for the two communications: declaration and (written) request. Presumably, if the declaration needed to be made to the Secretary of State, the statute would call for a written request that included the declaration.
Kobach’s interpretation is plausible, but no more so than Taylor’s. The latter does not require that one read anything into the statute, while the former does. Upon reflection, though, I think the court will need to reach the estoppel issue because I’d forgotten about the deference problem.
Taylor quotes a decision in his petition that says “substantial compliance with the law regulating the conduct of elections is sufficient” and “mere irregularities should not be permitted to frustrate the will of the voters, nor should the carelessness of election officials”. Now the issues were not the same in that case (they involved a dispute about post-election vote counting) but they do put forward a principle that the broad spirit of election law should be followed rather than focusing on a narrow technical meaning.
The other issue is whether the court should be giving deference to Kobach’s interpretation of the law. Kobach and Taylor never discussed this issue. Taylor discussed the law with Bryant so the court should be considering Bryant’s interpretation, which Taylor is saying he complied with.
It seems ridiculous for a court to be able to rule that Kobach has the power to not only interpret the law but does not even have to tell anyone what his interpretation is. The law generally requires that citizens be made aware of what the laws are so they can comply with them.