The Republican secretary of state in Kansas was accused of a “loosey-goosey” and “ad-hoc” determination of which candidates can appear on the ballot during the hearing Tuesday of a state supreme court case that could have major repercussions for November’s midterm elections.



In a highly politicised case, the secretary, Kris Kobach, is insisting a Democrat’s name should remain on the ballot, against the candidate’s wishes.



The Democrat in question – Chad Taylor – has brought a lawsuit to demand his name be removed from ballots before the first batch is printed at the end of this week.

The case is viewed from Topeka to Washington DC as a potentially pivotal moment in the 2014 election cycle, Kansas’s own Bush v Gore.

If Taylor’s lawsuit succeeds, and his name is removed, an independent candidate, Greg Orman, will likely receive a surge of Democratic voters, increasing his chances of unseating a three-term Republican incumbent, Pat Roberts.

Kobach is being accused of abusing his position to keep Taylor’s name on the ballot on a spurious technicality, a decision that favours Roberts, a close Republican ally. But Kobach insists he is merely implementing the letter of the law.

Given the close national race for control of the Senate, political analysts have observed the case could feasibly end up determining the balance of power in Washington.

“I know it is hard for people in the courtroom to understand, but there are some people in Kansas not breathlessly watching these proceedings,” joked chief justice Lawton Nuss mid-way through the hearing.

Those who squeezed into the packed courtroom to hear the oral arguments in Taylor v Kobach, however, were rewarded with an animated performance from both legal teams, in discussion that veered from an obscure 1997 statute to the meaning of a declaration and, at one stage, the question of whether a goldfish makes a suitable witness.

‘Pursuant to’

Ultimately, though, the case comes down to this: what’s the meaning of “pursuant to”?

That was the language Taylor used in the letter formally withdrawing his name from the Senate race, which he filed with Kobach’s office just one hour before the deadline for making amendments to the ballot.

The letter said: “I, Chadwick J Taylor, Democratic nominee for the United States Senate race, do hereby withdraw my nomination for election immediately and request my name be withdrawn from the ballot, pursuant to KSA 250-306b (b).”

The court heard that once the office was closed, Kobach, the state’s attorney general, Derek Schmidt, who is also a Republican, and “a room full of lawyers” stayed up late into the night reviewing the letter from the Democratic candidate.

The next day, Taylor was informed the words he used did not meet the necessary criteria.

Kobach’s counsel, Eddie Greim, told the court that Taylor’s mistake was not using “14 words” contained in the statute which constitute a declaration that the candidate is incapable of fulfilling the duties of office.

Unless a declaration meets legal standards, he added, the court would be saying a candidate could make a declaration “at home to someone’s goldfish”.

Saying “pursuant to” the statute, Greim added, was insufficient. He argued that Taylor was actually required to specifically declare himself “incapable” of serving.

Taylor’s counsel, Pedro Irigonegaray, retorted: “There is nothing else that Mr Taylor could have meant by ‘pursuant to’… except that he was withdrawing,”

The problem for Kobach and his attorneys was an issue revisited time and again by the justices during the hour-long hearing. It turned out Taylor was not the only candidate who pulled out of the race without invoking, directly, the words contained in the statute.

Irigonegaray brandished one particularly poignant example, a letter from another Democratic candidate, Miranda Rickel, a university undergraduate who had been standing for the state house of representatives.

Rickel’s letter “announcing” her withdrawal from the race made no reference to KSA 250-306b (b) and did not contain the 14 words Kobach’s legal team said were required.

In simple language, Rickel merely stated that her criminology studies had created a greater workload than she could manage while campaigning, a problem compounded by her having to take “two and sometimes three jobs” to help pay for school.

“I have concluded that it will be nearly impossible to handle all of this and still run an election,” she wrote. “I hate quitting, but I also hate doing a half-baked job.”

‘Seems pretty loosey-goosey’

Rickel’s letter was delivered to Kobach’s office on the very same day as Taylor’s. She was permitted to withdraw from the race. Taylor, on the other hand, was not.

“Why is this letter accepted, and not Mr Taylor’s?” Irigonegaray said, waving the Rickel letter above his head.

Justice Carol Beier pursued a similar line of inquiry, while acknowledging that Rickel could not have known her letter would have become embroiled in a supreme court case and saying “we apologise for that”.

Under intense questioning from Beier, Kobach’s attorney acknowledged the student’s letter did not fully comply with the law. But he said it “substantially complied, because explaining the reasons she was pulling out of the race was tantamount to declaring she was incapable of taking office.”

“Discretion has to be applied,” Greim told the justices. “It has to happen. That is how government works.”

However a third justice, Dan Biles, questioned whether discretion was being fairly applied. He noted that Rickel’s letter – unlike Taylor’s – had not been notarised by state authorities.

The official stamp of certification, he pointed out, was also missing from several other letters from candidates who had successfully withdrawn from races.

“Seems pretty loosey-goosey,” he told Greim. “You guys are deciding whether they comply or not in an ad-hoc basis, almost.” A fourth justice, Lee Johnson, raised the possibility that Kobach was using his discretion to decide when he would “hold a candidate’s feet to the fire”.

When the hearing concluded, Taylor hastily left the courthouse, ignoring questions from reporters.

Kobach, however, hosted a press conference, insisting the sceptical questioning his lawyer received from the bench did not necessarily mean he was about to lose the case.

He said was “amazed” when he saw that Taylor, an attorney, had attempted to withdraw from the race without the correct terminology.

“All he had to do was recite the magic words: ‘I am incapable of serving and fulfilling the duties of office if elected,’” he said. “I don’t know why he chose not to do so.”

Kobach, who is also up for re-election in November, dismissed suggestions from reporters that his decisions were biased, or somehow “dirty politics”.

“Some people would just say ‘let him off’. And sure, that is my natural inclination,” he said. “But if I ignore the law and don’t enforce it because, ‘Hey, it would be easier for my campaign’, then I would be a raw political hack who is just worried about his own future.”