TOPEKA, Kan. (AP) — A key contest in the fight for control of the Senate could turn on the outcome of an arcane legal argument Monday over whether Democrats must field a candidate against struggling Kansas Republican Sen. Pat Roberts.
The case centers on whether a state election law requires Democrats to pick a new candidate after ex-nominee Chad Taylor withdrew earlier this month or whether the party can choose not to replace him. Some Democrats pushed Taylor out, viewing independent candidate Greg Orman as the stronger rival for Roberts and hoping to avoid a split in the anti-Roberts vote that would help the GOP incumbent stay in office.
Republicans need to gain six seats for a Senate majority, and the GOP has always counted on the 78-year-old Roberts winning in a state that has elected only Republicans to the chamber since 1932. Orman, a 45-year-old Olathe businessman, is running as a centrist — promising to caucus with whichever party has a majority and play kingmaker if neither does. Roberts has struggled after a bruising primary and questions about his residency in Kansas.
Taylor had to petition the Kansas Supreme Court to force Kansas Secretary of State Kris Kobach, a Roberts supporter, to remove the Democrat's name from the Nov. 4 ballot. Minutes after the high court ruling, a disgruntled voter sued the Democratic Party to get a replacement on the ballot, and Kobach is attempting to intervene again.
Rebecca Green, a law professor and co-director of the Election Law Program at The College of William & Mary in Williamsburg, Virginia, said such a case represents "a court's worst nightmare" because of the jockeying between the Republicans and Democrats, so any ruling will be perceived as political.
"The goal is not justice," said Green, who's following the Kansas case closely. "The goal is winning."
Kobach has said the case must be resolved by Oct. 1 so that counties can print thousands of ballots and people can begin early voting from Oct. 15. He said his goal is enforcing state election law "exactly as it's written."
But Kansas Democratic Party Chairwoman Joan Wagnon said of finding a new candidate, "I don't see how, in any kind of practical sense, you can pull this off."
The law in question says that if a candidate vacancy occurs after the primary, it "shall be filled by the party committee" of the district or the state, depending on the office. A three-judge panel in Shawnee County District Court must decide whether the language means all vacancies must be filled, or whether the law simply spells out who fills a vacancy if a party wishes to do it.
The consequences of answering the legal point could be nationally significant. A Libertarian is on the ballot and is likely to draw a few percentage points of the vote. A Democratic candidate — even one who doesn't campaign at all — could siphon vital votes from Orman and allow Roberts to prevail.
"There are going to be some Democrats out there who wander into the polling place and see a D and vote for the D," said Bob Beatty, a political science professor at Washburn University of Topeka. "It could be 5 to 10 percent, and that's a lot if Orman wants to win."
The disgruntled voter who is suing the Democratic Party is David Orel, a 57-year-old Kansas City, Kansas resident who's been a registered Democrat at least since 1999, according to voter records. His 22-year-old son, Alex, works for the re-election campaign of Republican Gov. Sam Brownback, another Roberts supporter, though Brownback said he wasn't aware of the father's involvement.
"What we're trying to concentrate the court on is the law," said Tom Haney, a Topeka attorney representing the voter.
Follow John Hanna on Twitter at https://twitter.com/apjdhanna