I speculated about the estoppel by reliance approach here.
I think his major problem there is one of factual proof, but even setting that aside, I think – but I’m not by any means certain – that applying traditional principles of estoppel would still not benefit Taylor, because Bryant is not permitted to give legal advice to Taylor, and Taylor cannot therefore rely on Bryant’s advice in the context of estoppel by reliance.
Still, this is an argument which evokes a strong general sense of inequity, and estoppel is all about equity. So if there’s a path to sunlight here for Taylor, I think it might be in this argument.
Assuming that you want to continue to play cutesy-poo games of excruciatingly precise semantic distinctions: if he cannot win, is he not “incapable” of fulfilling the duties of the office?
So if you agree that the criteria is “The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent (that is, neither conjectural nor hypothetical; not abstract).” - what injury is Taylor suffering from his name being on the ballot?
Gotta wonder why Mr Bryant has not offered any statement. I thought he had, but it turned out it was Kobloch “hearsay”, but there is nothing currently available. Shirley by now he must have heard the news, someone must have spoken to him about all this?
So, if Kobloch’s statement about him is accurate, there are no malign consequences for Bryant, he could cheerfully confirm that representation. Only if it is not accurate is there any downside.
Now, inspired by friend Bricker’s recent resolution to refrain from treating inference and insinuation as fact, I will not give that any more weight than it deserves, but the inference is there, isn’t it?
Assuming that Kobloch’s representation is truthful and accurate, and considering the level of rancor all this is generating…why has he not spoken up?
The law requires that he certify that he is “incapable of fulfilling the duties of office if elected.”
And again, the issue is not what games I may, or may not, play. Like the tax protester, you may be convinced that spelling your name in all capitals means it’s not really you. You may be sincere and steadfast in your belief.
What will the courts do?
In this instance, elucidator, you may be genuinely convinced that this is simply a cutesy-poo game of excruciatingly precise semantic distinctions. Fine – but what will the law actually do? What will actually happen?
If my analytical approach is the correct model for determining what will actually happen in real life, can you explain what value your model has?
That’s pretty much for him to decide. Maybe he doesn’t want to have to refuse to take office in the event that he wins. Maybe he just doesn’t want his name to appear on printed materials. Maybe he’s converted to a religion that frowns on participation in the electoral process.
This may seem counterintuitive, because you and I know that he is in no way “harmed” by appearing on the ballot. The point is that the sufficiency of the injury isn’t at issue in standing analysis.
His claimed injury is: the Kobach interpretation forces him, contrary to law, to explicitly say that he cannot perform the duties of the office of US Senator, an admission you yourself agree is damaging to his career.
Please. You’re pretending the text only has one possible meaning when it does not.
Once again the law:
Now show me where it says the declaration must be contained in the request.
Any person … who declares that they are incapable … may cause such person’s name to be withdrawn from nomination by a request in writing
So a declaration of incapability must be made - with no details on how it must be made, to whom, and what words must be used. And then a signed written request for withdrawal must be submitted.
If you are honest, you have to admit there is nothing there in the text that requires the candidate to include his declaration in his request. Nor is there anything that outlines how the declaration must be made.
Now I will concede that Kobach has made one interpretation which is possible. But there are plenty of other interpretations which are equally possible. Claiming that Kobach’s interpretation is the only possible one and twenty random people would independently arrive at the same interpretation is not true.
I also acknowledge that Kobach’s interpretation has more weight than the average person’s. He is the Secretary of State. But he is not the sole and unquestionable authority. Brad Bryant is the Director of Elections - presumably he also has some degree of authority. If he offered an interpretation of what the law meant, his interpretation must also have some legal weight.
This the law we’re talking about not mathematics. The law is just a collection of opinions and decisions not absolute truth.
I am not implying that at all, and I don’t know where yo got that idea. I am saying if he says he is injured we assume he is, then determine if the injury is particularized and imminent.
Assuming its a serious question, Bryant is a state employee and its generally policy in most states and state agencies that only authorized state employees are allowed to make statements to the press, usually in the agency’s press office. If he were to make an unauthorized statement ti the press, he risks discipline and his career would be in jeopardy.
Not at present. The deadline is past, so there is no question of forcing Taylor to say anything. The lawsuit would be about removing Taylor from the ballot, based on the already-filed application. He cannot revise that application, so there is no injury of him explicitly stating that he cannot perform the duties etc.
His beef is that he is still on the ballot. Where is the injury in being on the ballot?
Right. Which contradicts “if he says he is injured we assume he is”. No you don’t assume he is. You decide if he is or not. THEN you decide if the injury is particularized or imminent.
I’m saying that if I gave the text of that law to 20 English-speaking adults selected randomly, and then asked them to draft a letter that complied with that law, all 20 would do it by including the declaration in the letter.
OK. So what’s actually, in real life, going to happen here?
I see that you’re absolutely married to this argument, for reasons I don’t understand, but, no. Standing, like other jurisdictional issues, must be decided before consideration of the merits. If there is no standing then the court will never reach the merits of the case. So for the purposes of standing analysis it has to be assumed that the injury exists. As I mentioned earlier, whether the injury is of a type that the court can deal with is a matter of redressability, not standing.
You seem to have the idea that if Taylor has standing he will win a (potential) lawsuit. That is an entirely separate question. What is clear is that he has standing. Whether his mooted case has merit is doubtful.
The Court held he had no standing; no right of his was infringed, and he could not represent the interests of his patients.
Is the “no right of his was infringed” finding a finding of fact or not? After all, according to your posts, it has to be assumed, for the purposes of standing analysis, that his rights were infringed, no?
Not at all. I think it is pretty obvious he would lose it.