This is the problem with discussing politics with you, Terr. I’m never sure if you understand your own position.
So what are you saying now? Are you saying Taylor’s letter met the requirements or that it did not? Did Taylor think his letter met the requirements or did he think it did not? Did Bryant know that Taylor’s letter met the requirements or did he not know if it met the requirements?
Go figure out what it is you think happened.
So you feel Taylor knew his letter didn’t meet the requirements but submitted it anyway. And Bryant was also aware at the time that Taylor’s letter didn’t meet the requirements but didn’t point this out to Taylor.
Doesn’t this put Bryant in an awkward position? Why did he accept a letter that he knew didn’t meet the requirements?
As has been repeatedly pointed out, there’s nothing in the law that says the declaration must be in the request. That requirement is in a separate document. So a person could read the law and not be aware of the requirement.
No, I think it did not.
I think he knew he was trying to finesse the statement without stating things explicitly and was hoping it would pass muster. Does that answer your question?
Bryant probably had the opinion that it didn’t. But as I said, it is above his pay grade to decide it or advice candidates on this, so he was noncommittal in his response to Taylor. As he said in his affidavit.
Correct. But it does require the declaration. It can be separate from the request. But it has to be declared. Taylor knew that.
As if it couldn’t get any weirder…
So, it would appear, then, that Mr. Bryant’s “gesture” was likely a “yeah, sure, maybe” gesture than a “probably not, have to see” gesture. Seeing as how he acted upon his opinion until that opinion was over-ruled by Kobloch. Not to say that Bryant’s instructions to remove Taylor’s name from a list of websites is some Big Hairy Ass Deal, but it does imply an opinion and a decision on Bryant’s part.
And, of course, the capper: how the Hell did Taylor accept a non-committal gesture on Bryant’s part as an answer? Was it too much effort to say something, like, “What the Hell does that mean?”? Given the tightening restraints on time, we are expected to believe that he simply thanked Bryant for his utterly non-definitive statement and walked away?
And did Bryant advise Taylor that the question was over his pay grade? There is no mention of it. Perhaps he had no actual legal obligation to be forthcoming? Clearly, he couldn’t directly mislead Taylor, that would be wrong. But is kosher for him to play cute games of vague gestures? Da fuq?
So, did he say so? There’s Taylor, in his office, asking for his opinion. Why did Taylor think he was the right guy? Just because he has some title like “Director of Elections”, Taylor got some crazy idea that he was the go-to guy?
OK, he wasn’t. Then why not just say so?
Is there any evidence that he didn’t make the appropriate declaration?
Can’t prove the negative. There is no evidence that I am aware of (or that Taylor has provided in his lawsuit) that he did.
I’m not sure I buy the argument that he didn’t want to put it down on paper so as to save face. Even if he doesn’t have the explicit words written down, he’s implicitly saying that he’s incapable of fulfilling the duties which is pretty much just as useful for political attack ads.
Yes:
[ul]
[li]I didn’t hear him make the declaration[/li][li]You didn’t hear him make the declaration[/li][li]My friend didn’t hear him make the declaration[/li][/ul]
So, that’s evidence.
What evidence do you have that he did?
Not nearly.
It might be somewhat useful.
But people are used to shady half-true campaign claims. An image of a letter that explicitly says, “I am incapable, signed Mr. Chad Taylor,” is far more devastating than a voiceover that says, “Chad Taylor implicitly admitted he was incapable with this letter referencing the Kansas statute,” because the latter seems like a typical distortion or exaggeration.
Once again speaking only from speculation: Bryant didn’t know if his boss would say, “Yes, it doesn’t meet requirements, but accept it anyway.”
The whole point of Skidmore deference is that the Secretary of State of Kansas is entitled to deference – not so much a Deputy Assistant Secretary of State. Bryant didn’t want to say “No,” and read the next morning’s paper:
Deputy Assistant Secretary of State Bradley Bryant refused to accept Taylor’s letter, claiming it violated Kansas law. Contacted for comment, Secretary of State Kris Kobach said that he regarded the law as a guideline and would have allowed the disputed filing.
I do it more along the lines of, “Chad Taylor already admitted he is incapable of fulfilling the duties as a Senator. Is this the man you want representing you? Chad Taylor. Bad for Kansas. Bad for America. Bad for you.”
Hell, they can probably put up a text snip with small text at the bottom saying something like “not actual text” without getting into trouble.
Huh. Upon review of the Petition, it appears you are correct.
No. The point of Skidmore deference is that the reasoning of the Secretary of State of Kansas is entitled to deference to the extent that it is persuasive.
I don’t think post hoc reasoning in legal briefs even gets Skidmore deference, but even if it does, this form of “deference” is just a requirement to consider the reasoning and follow it if it is persuasive. So if a court is faced with equally persuasive options, the court must resolve the case by deferring to the state official. It is, at best, a tie-breaker. The case will really come down to essentially de novo review of the statutory language.
I briefly looked at Kansas state law on the issue and it doesn’t seem that they distinguish between formal and informal adjudication for deference purposes; they have one standard that seems to fall between Skidmore and Chevron.
:smack: Good point, of course. I hadn’t bothered to see whether Kansas follows these federal agency concepts.
Still, I wonder how such deference plays out in the absence of public, pre-litigation reasoning. AFAIK, Kobach never justified his reading of the statute, did he?
By the way - it seems that the Supreme Court will not consider the estoppel argument at all.
Kobach argued (among other things) that the Kansas Supreme Court should not take original jurisdiction over this case because there was a disputed finding of fact: Kobach has said that election officials deny telling Taylor his letter was sufficient for withdrawal. Generally trial courts do factfinding and appellate courts like the Kansas Supreme Court are not in a position to do factfinding.
In today’s Kansas Supreme Court order, the court specifically addressed the point as follows:
“There is no need to refer this matter for fact finding by a judge of the district court or a commissioner as authorized by the Supreme Court Rule 9.01(d) (2013 Kan. Ct. Rule Annot. 83). The two piece of evidence relevant to the controlling legal issue of the interpretation and application of K.S.A. 25-306b(b) are attached to Petitioner’s sworn affidavit as Exhibits A and B.”
Correct me if I’m wrong, but factfinding is needed to decide on the estoppel argument.