So the answer to my questions in your case would be no and no.
No and no. I don’t think the law requires the declaration be included in the withdrawal request, although that’s the most logical place for it to be. It can be submitted as a separate document, I am sure. Or published in a newspaper. But it has to be made, and I would not think a verbal declaration (if such was made, although I haven’t heard anyone claim that) is adequate.
I think Kobach is taking advantage of the unwillingness of Taylor to commit political suicide. But I don’t see that as an illegitimate tactic. And, as I said, the Torricelli/Lautenberg karma is biting back.
As much as I want to see payback for Torricelli/Lautenberg, I don’t see this as equivalent. What would be equivalent is to yank Roberts in late October in favor of a more popular Republican.
So you feel this is justified because of another ballot controversy that occurred twelve years ago in New Jersey?
At least everyone else is arguing what the requirements are under Kansas law.
No, I think it is justified because that is what the law is. Karma is not a justification. Karma is karma.
Well it’s the same thing in that it is dirty politically, but lawful. In fact, more lawful in this case, since the law is on Kobach’s side. In New Jersey the Supreme Court had to completely ignore the law to justify allowing the switch.
But you called it payback.
There are similarities but probably not ones you care to mention.
In the 2002 New Jersey Senate race, Democrat Robert Torricelli was running against Republican Doug Forrester. Thirty-five days before the election, Torricelli withdrew because of accusations he had received illegal campaign contributions. The Democrats wanted to place former Senator Frank Lautenberg on the ballot. The law said there could be no change in candidates within fifty days of the election. The New Jersey Supreme Court reviewed the case and allowed the substitution. Lautenberg won the election.
Now you can say that the similarity here is a partisan decision was made in both cases. Which I guess means you’re agreeing that Kobach’s decision is as legal as the New Jersey Supreme Court’s decision was. But the similarity I’m seeing is that they are both cases where the Republicans wanted to be handed an advantage on Election Day. This seems in keeping with the Gore v Bush decision, Hart Intercivic, Diebold, gerrymandering, and Voter ID laws.
The NJ decision wasn’t partisan so much as it was just stupid. A judge made up some constitutional right to have a choice, even though unopposed elections occur all over the country for various reasons and there are often third parties on the ballot as well. What the judge basically ruled was that a race must have a Democrat and a Republican.
Some fun info: Taylor claims he will “challenge” Kobach’s decision. He still has not done anything.
There are two ways he can do it. One is to appeal to the state election board. Which is made up, mostly, of Republicans. The other is to file a lawsuit. That presents other difficulties - first, I wonder whether he has standing - that is, whether he can show that he was harmed by Kobach’s decision to leave his name on the ballot. And second - there are 60 days till election. Courts are slooooow.
No. I say the declaration must be made. I agree with you that it doesn’t have to be in the letter.
It does not.
In what way(s) do you think it does not meet the requirement?
Have any other withdrawal letters been made public, so we can compare them?
And this is the universal and unanimous opinion of all legal scholars, or is simply the humble opinion of the World’s Foremost Authority?
It’s missing a declaration that he would, if elected, be unable to perform the duties of the office.
But as I said above, I agree that learning other letters had been accepted without an explicit declaration would completely change my mind.
So far as I am aware, no other letters have been made public.
Fallacy of the Excluded Middle.
I don’t see why they can’t be; I assume they’re public record. Perhaps some enterprising journalist will go dig them out.
So, then, may we conclude that legal experts who’s expertise might fairly be compared to your own have opinions that differ from yours on this interpretation?
Or have you another response avoidance device to offer?
You may conclude that you said:
And I observed that this question assumes two options that are fairly described as extremes, without mentioning any of the possibilities that would lie in the middle, which is known as the Fallacy of the Excluded Middle.
This is what prompted me to identify it as the fallacy of the excluded middle.
I’m not aware of any attempt at a legal analysis of the position. Even my own commentary is bereft of much research, although I did attempt to find prior court cases construing the provision. As I mentioned above, the closest I came was an AG opinion which involved a prior version of the law and shed no light on the current situation. I found no court case interpreting the provision.
I would be very interested in reading a legal analysis that reached the opposite conclusion, however, because it might well supply information that would persuade me that my initial take on this is incorrect.
Perhaps you could link me to some legal analyses of the issue you found persuasive?
Seriously. Even if it turns out that such prior notices were legally insufficient, the revelation that the SoS office had been accepting them and giving them effect makes their refusal to do so here (if that’s what happened) highly suspect, and allows Taylor to correctly complain that he’s not being treated fairly.
On the other hand, if there are prior letters that all contained the phrase, “…because I am unable to perform the duties if elected…” then Taylor doesn’t seem to have much of a leg to stand on.
One thing I wonder about is the possibility of Taylor making an estoppel argument.
Basically, he might say, “Look, I relied on your office to tell me what to do; you can’t now ding me for failing to do it correctly.”
There are two huge hurdles for that argument:
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Factual dispute: Kobach now says that Bryant never told taylor what Taylor says Bryant told him.
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Legal dispute: for various technical reasons in the doctrine of estoppel by reliance, Taylor may not be able to say that he relied on Bryant’s legal advice. (On the other hand, Bryant may not be allowed to give such advice).