September 12, 2014 | | Leave a Comment
By Staff Writer
As November 4th draws near, most U.S. Senate campaigns are preparing for the home stretch: honing Election Day operations plans, recruiting poll watchers, and beginning get-out-the-vote activities early and absentee ballots start to appear in voters’ mailboxes. In Kansas, however, the Democratic Party has been forced to contend with a Senate candidate who is actively attempting to drop out of the race perilously close to the finish line, as well as the legal consequences that have ensued as a result.
Shawnee County district attorney and Democratic nominee Chad Taylor submitted papers to remove himself from the Kansas ballot just before the filing deadline on September 3rd; however, Kansas Secretary of State Kris Kobach’s office has said that Taylor’s withdrawal affidavit failed to meet statutory requirements for renouncing his nomination, ruling on September 4th that Taylor’s name must remain on the ballot. Kansas state election law provides that “no person who has been nominated by any means for any national … office may cause such person’s name to be withdrawn from nomination after the day of the primary election.” The only two exceptions to this law are candidates who pass away between the primary and the general election, and candidates who file a written statement that they are “incapable of fulfilling the duties of office if elected” with the Secretary of State. Although Taylor did indeed file a written request to be removed from the ballot, the withdrawal papers did not include such a statement.
In response, Taylor filed suit in the state’s highest court on September 9th seeking an emergency injunction prohibiting Kansas from including his name on the ballot. In his complaint, Taylor invokes his constitutional right to engage—or not engage—in political activity, stating that “[b]y keeping my name on the ballot despite my explicit and timely withdrawal, the Secretary of State is conscripting me to run for office, in violation of my First Amendment rights.” Neither Kobach nor Taylor has invoked binding precedent in Kansas or the Tenth Circuit in their tête-à-tête, but in 1968, New York State’s highest court ruled that individuals—in that case, Eugene McCarthy, an independent—may not be forced to run for office against their will. Ultimately, the Kansas Supreme Court (which recently gained another appointee via Republican Governor Sam Brownback) will need to rule on the merits of Kobach’s statutory argument versus Taylor’s constitutional one. If the high court does rule in Taylor’s favor and grant his request to be removed from the ballot, Kobach has already filed a notice with the court on September 10th stating his intention to force Democrats to pick a new nominee to replace Taylor, an action mandated by a separate Kansas election statute.
Upon Taylor’s withdrawal, Democrats and some Republicans pledged to support independent candidate Greg Orman. As a result, incumbent Republican Senator Pat Roberts—who already had to cope with a bruising primary battle earlier this year—is facing his toughest general election in quite some time: a recent poll suggested that Orman and Roberts are neck-and-neck, and the percentage of self-declared “undecided” voters in the race has skyrocketed. Taylor struggled with fundraising throughout the spring and summer; and The Hill has suggested this as a possible reason why he is seeking to exit the race. Meanwhile, Roberts is attempting to replenish his coffers after depleting them in the run-up to the primary.
Orman himself remains something of a mystery. Although members of both parties have endorsed him, he has not confirmed whether he will caucus with Democrats or Republicans if elected to the Senate—and The New Yorker has reported that Orman has sworn to vote out Senate Majority Leader Harry Reid if given the opportunity.
Ballots must be finalized by September 18th so that Kansas can meet a September 20th deadline to begin mailing them to overseas and absentee voters. Thus, time is of the essence for Taylor’s legal team, which includes experienced Democratic election lawyer (and William & Mary Law School adjunct professor) Mark Elias. In a year when control of the Senate likely hangs in the balance, every seat matters for both Republicans and Democrats. Regardless of the outcome for Chad Taylor, this race—and its accompanying legal challenges—will be an exciting one to watch in the coming weeks.
September 10, 2014 | | Leave a Comment
By Dru Tigner
What do Greg Abbott, Wendy Davis, State Senator Letitia Van De Putte, Former U.S. House Speaker Jim Wright, and U.S. District Court Judge Sandra Watts all have in common? They all apparently have high potential for committing voting fraud– at lest according to the State of Texas. All five of these prominent Texas leaders were hassled by the new Texas Voter ID Law this past November.
It has been a concern for those opposed to the Voter ID Law that it will make it difficult for individuals to obtain appropriate identification, and thus poor, elderly, and minority voters will be disenfranchised because they lack appropriate identification. However, it seems that one distinct group that also may be affected are people whose photo ID’s don’t match the name that is recorded in the voter rolls.
September 10, 2014 | | Leave a Comment
On Saturday, September 20 the Institute of Bill of Rights Law at William & Mary Law School will hold its 27th annual Supreme Court Preview. The event features a lunchtime breakout panel “The Court and Election Law” with Paul Smith (Jenner, argued Vieth, LULAC, and Florida redistricting cases), Pam Karlan (DOJ, Stanford), and Erin Murphy (Bancroft, argued McCutcheon). The session will cover race and redistricting, Section 2 voter ID and early voting cases, and campaign finance. In addition, a morning panel on civil rights cases before the Court will include a discussion of Alabama Legislative Black Caucus v. Alabama. The Preview congregates judges, former solicitors general, Supreme Court advocates, and prominent Court journalists to discuss the upcoming term. Those interested in attending can find more information and register for the event here.
Rebecca Green, co-director of William & Mary’s Election Law Program, has written an insightful article on the upshots for election transparency seen in ongoing Mississippi election campaigns. The post is shared on Professor Rick Hassen’s excellent Election Law Blog.
By Allison Davis, Reporter.
William & Mary’s Election Law Program and DC Vote co-hosted a symposium on Rethinking DC Representation in Congress on February 21, 2014 in Washington, DC. The symposium impaneled several highly regarded Constitutional law experts and voting rights advocates. Read more
What is the impact of McCutcheon on state campaign finance laws? We’re starting to see some glimpses of what might be coming down the pipeline now that the Supreme Court has ruled aggregate limits on donations unconstitutional:
Ken Gross and Allison Davis (WM Law ’16) are featured discussing the possible impacts of McCutcheon on state campaign finance laws in the Election Law Program’s latest module at www.electionlawissues.org.
April 3, 2014 | | Leave a Comment
By Sarah Wiley
On Thursday February 27, William and Mary Law School hosted its Eighth Annual Election Law Symposium, featuring three preeminent attorneys in the field who gave a talk on the possible effects of McCutcheon v. FEC on campaign finance. Before the symposium itself, however, one of the panelists, Kenneth Gross (partner at Skadden, Arps, Slate & Flom LLP & Affiliates) sat down for an interview with ELS Symposium Co-Chair 1L Allison Davis.
In the interview, Mr. Gross explained that modern campaign finance law emerged in the wake of the Watergate scandals in the early 1970s. The first major case, Buckley v. Valeo, established the principle that political contributions are speech, so the government needs a pretty compelling reason to regulate them. The case drew a distinction between independent expenditures, which cannot be regulated, and political contributions which can, to an extent. Read more
February 26, 2014 | | Leave a Comment
Mr. Kenneth A. Gross is a former associate general counsel for the Federal Election Commission (FEC) and is now a partner at Skadden where he leads the political law practice, and advises corporations on political given. He will be one of three speakers at William & Mary on Thursday, February 27 on the impact of McCutchen on political giving.
February 24, 2014 | | Leave a Comment
Mr. Lawrence “Larry” Noble is a highly regarded attorney and authority in the field of election law. In particular, his work in campaign ethics and finance is frequently referenced. He will speak at William & Mary this Thursday, Feb. 27th, on the state of political giving post-McCutcheon. Read more