Party strategists like clever plays involving election law when they create surprises for the other party. When they create surprises for themselves, they tend to enjoy it a lot less — and Democrats may be in the process of discovering that in Kansas. Mary Katharine wrote last night that the Democratic nominee pulled out of the US Senate race in Kansas, theoretically leaving supporters of Chad Taylor to swing to the more popular independent, Greg Orman. This would create a coalition that had a good chance of defeating the incumbent Republican, Pat Roberts, and put a big dent in GOP hopes of controlling the Senate.
Democrats patted themselves on the back when Taylor pulled out with just minutes to spare on a deadline for exiting the race. It turns out, though, that Kansas Democrats didn’t read the statute closely enough:
Despite filing papers with the Kansas secretary of State withdrawing from the Senate race late Wednesday, Democrat Chad Taylor may be stuck on the ballot this fall.
Two election law statutes have raised questions about whether Taylor gave sufficient cause to remove himself from the ballot, and, if so, whether Democrats must ultimately choose a candidate to replace him.
Kansas law requires any primary-nominated candidate to remain on the ballot for the general election unless special circumstances exist to allow the withdrawal. “Special circumstances” means death, illness, or a declared inability to serve in office, none of which accompanied Taylor’s withdrawal. The Hill links to Taylor’s letter of withdrawal, which says in its entirety (minus the header and footer):
I, Chadwick J. Taylor, Democratic nominee for the United States Senate race, do hereby withdraw my nomination for election effective immediately and request my name be withdrawn from the ballot, pursuant to KSA 25-306b(b).
— John Celock (@JohnCelock) September 3, 2014
Note the absence of any declared reason for the withdrawal. The statute cited by Taylor specifically requires a representation that the candidate is “incapable of fulfilling the duties of office if elected,” emphasis mine, and not just uninterested in doing so. Otherwise, in the same statute that Taylor cites, “no person who has been nominated by any means for any national, state, county or township office may cause such person’s name to be withdrawn from nomination after the day of the primary election.”
Furthermore, the withdrawal of a party nominee requires the party to replace the nominee, according to KSA 25-3905, also cited by The Hill:
25-3905. (a) When a vacancy occurs after a primary election in a party candidacy, such vacancy shall be filled by the party committee of the congressional district, county or state, as the case may be, except if the vacancy is in a party candidacy for a district office or for the office of member of the state board of education, it shall be filled by district convention held as provided in K.S.A. 25-3904, and amendments thereto, or as provided in K.S.A. 25-3904a, and amendments thereto, and except as otherwise provided in subsection (c). Such convention shall be called within 10 days of receipt of the notice that the vacancy has occurred or will occur. If only one political party nominates a candidate at the primary election and thereafter a vacancy occurs in such party candidacy, any political party may fill such vacancy in the manner specified in this section.
It’s possible that the Democrats could pull together a convention to nominate Orman, but that would make hash of Orman’s independent draw in the race. That would only work if the state of Kansas allows Taylor’s name to be stricken from the ballot, which at least for now they won’t. Democrats may not get the opportunity to hold a convention, absent a representation from Taylor under oath that he has some serious impediment that will keep him from fulfilling the obligations of office, and even then it might now be too late to submit a lawful ballot withdrawal, as the deadline has already passed. And if Taylor manages to concoct such a reason for his own disqualification, that would once again shine the light on the Democrats, who would have recruited and promoted him despite his substantial defect, whatever that might be.
In a way, this looks like a Robert Torricelli move in reverse. The New Jersey incumbent withdrew from the race in the midst of a scandal, and the courts allowed Democrats to replace him with the late Frank Lautenberg even though the filing deadline had passed. Now Democrats will likely have to ask to get their nominee off the ballot after a deadline and fight to keep from being forced to replace him. It has a rather delicious irony to it.
In any case, there is such a thing as being too clever by half, and Democrats may have even exceeded that measure in Kansas. This tawdry and corrupt move will taint their entire ticket, and probably Orman by association as well.