Things are getting surreal in the land of Oz, er, Kansas. the Topeka Capitol-Journal reports on Monday’s court hearing to force Democrats to pick a replacement candidate for the U.S. Senate. No ruling in bid to make Dems fill Senate candidate vacancy:
A three-judge Shawnee County panel didn’t decide Monday whether Kansas Democrats should be required to fill the vacancy left when Chad Taylor dropped out of the closely contested U.S. Senate campaign against Sen. Pat Roberts, a three-term Republican.
The court challenge seeking to force Democrats to fill the vacancy hit a stumbling block Monday when David Orel, the man who filed the suit, failed to show up for his day in court.
The judges didn’t rule on whether the suit was still viable in light of the plaintiff’s absence, preferring instead to hear more arguments before making a ruling they indicated would come before 2 p.m. Wednesday — the time Secretary of State Kris Kobach says ballots absolutely must have candidate names to be sent to printers.
Orel, a Kansas City, Kan., man whose lawsuit said he wanted the right to vote for a Democrat in the Senate race, wasn’t in the Shawnee County District Courtroom when his case was heard, causing the three-judge panel to break and decide whether the case was still viable.
The three district court judges, assigned the case by the Kansas Supreme Court, intensely questioned Orel’s attorney, Thomas Haney, about his client’s absence. Haney told the judges that reporters had badgered his client at all hours of the day, and that Orel was declining to come to court.
Haney noted the courtroom was crowded with news reporters and photographers but said “the entire state is not hanging on the results of this.”
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Orel simply wants to vote for a Democrat, Haney said. Orel also is the father of a field director for Republican Gov. Sam Brownback’s re-election campaign.
Randy Rathbun, attorney for the Kansas Democrats, said he wanted to question whether Orel was a Democrat and whether he voted in the primary election in August when Taylor, the Shawnee County district attorney, won the nomination to oppose Roberts.
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Orel’s absence Monday created a question as to whether he has legal standing in the case.
“He filed a lawsuit against the Democratic Party in the midst of a heated campaign, then thumbs his nose at this court and refuses to come to today’s proceeding,” Rathbun said of Orel.
In an earlier decision Monday, the panel ruled against Kobach in his bid to intervene in the case.
Shawnee County District Court Judge Larry Hendricks, the panel’s presiding judge, said in announcing the decision that Kobach’s presence wouldn’t add appreciably to settling the questions before the panel. After Kobach’s motion was denied, he and two attorneys left a counsel table, and the secretary of state left the courtroom.
Kobach — the chief election official in Kansas — had sought a role in the case, arguing in filings prior to Monday’s hearing that Kansas law says that when a candidate vacancy occurs after the primary election, “such vacancy shall be filled” by the party.
Kansas Democrats, in their filings, argued that higher courts have long determined that the word “shall” when used in legislation doesn’t always mean a mandatory action.
Hendricks noted that “shall” can mean “shall,” “should,” “may” and “is entitled to.”
Rathbun referred to “shall” as a “problematic” word in the law.
Haney disagreed, saying “shall” doesn’t mean something is “discretionary” but means the statute “mandates it.”
The two sides also argued that Orel’s suit is essentially moot after Kobach — turned down by the Kansas Supreme Court on Sept. 18 in Kobach’s bid to keep Taylor’s name on the ballot — ordered local county election officials a day later to send ballots without Taylor’s name to overseas voters in order to meet federal requirements to do so 45 days before the Nov. 4 general election. That deadline was Sept. 20.
In brief questioning of Kobach before ruling against his involvement, Chief Judge Evelyn Wilson asked whether he had ever tried to add a name to an already printed ballot.
“It has not happened in my tenure of office,” Kobach replied.
I would say it is pretty clear that Orel is going to lose this frivolous lawsuit, but then it is Kansas, where everyone has gone crazy. A decision will be made by tomorrow.