Kansas ballot integrity law upended in Senate race

by Kathy Ostrowski

Last month, Kansans witnessed court shenanigans to secure a dirty back-room deal to try to stop Republican pro-lifers from taking over the U.S. Senate majority.

The floundering Democrat Senate candidate- Topeka District Attorney Chad Taylor-submitted a last-minute statement of withdrawal on Sept.3. Taylor did not type out,"I am incapable of fulfilling the duties of this office if elected," which (after the primary has passed) is the only allowable excuse, other than death, for getting out under Kansas statute 25-306a .The Kansas State Supreme Court ruled his use of the phrase "pursuant to" in his statement, sufficed to remove his name.

No one disputes that Taylor's exit was designed to facilitate opposition to 3-term GOP incumbent, Sen. Pat Roberts, coalescing around multimillionaire "independent" candidate, Greg Orman, who'd been running TV commercials promoting his candidacy before he was even technically on the ballot. (Read pro-abortion support for Orman here and national media frenzy over the Roberts challenge here)

The tougher question that the Kansas State Supreme Court ducked was whether the Democrat Party could be held in contempt (and fined) for not supplying a Democrat replacement for Taylor. The party had refused to find a replacement, even after Secretary of State, Kris Kobach, said the law required it. (even with a viable candidate, see below).  A lone, long-time-Democrat-voting citizen, David Orel, filed suit for Democrats to perform that duty.

The state Supreme Court wanted to dodge that question and certainly the fact that four of those justices are Democrats and one of their homes was being used that week for a Democrat fundraiser had no impact, right? So the issue of whether the Democrats were illegally not replacing the Taylor name was sent to a lower court panel of three judges who

• were insulted that Orel did not come to court, although his attorney argued that the court merely needed to interpret the statute, without testimony;
• found that Orel would not be uniquely harmed by not having a Democrat candidate for U.S. Senate on the ballot;
• ruled that the law about replacing withdrawn candidates was not a mandate, just an option.

Now, it is true that current legal scholars hate laws that use the word "shall." But, as the filing of the Kansas Attorney General's office in this matter explained: the pertinent Kansas election provision in the Taylor/Orel matter uses "shall" for some mandates and "may" for some optional duties-indicating that the legislators understood the difference, and that candidate replacement by the party (after the primary) was mandatory.

WHERE'S WALDO?

But, wait... where was the Democrat whom the public and the courts should have heard from? The rightful replacement for Taylor- Taylor's  runner-up in the primary, who had garnered 46.3% of the primary vote, who could, with not much effort, resume campaigning for the seat?

Patrick Weisner is that person- a successful CPA and attorney, newly retired from the military, who in fact had also campaigned for the U.S. Senate seat in 2010! Where'd he disappear to in all this? Oh wait, a perusal of Weisner's political positions (here, here and here) show he is not a lock-step Democrat. Guess he was muffled off as part of this back-room deal.
 

In conclusion, Kansas election law to preserve the integrity of primary-chosen candidates has been perverted and needs to be revisited.