The Kansas Supreme Court on Tuesday sent the question of whether the state Democratic Party is required to appoint a Senate nominee to replace Chad Taylor to a lower court, a decision that helps independent candidate Greg Orman against Sen. Pat Roberts (R).
In a three-page order, Chief Justice Lawton R. Nuss wrote that transfer of the case to the Shawnee County district court "is appropriate" because petitioner David Orel's "pleadings do not contain sworn evidence necessary to enable this court to make any of a myriad of legal determinations."
Rick Hasen, an expert on election laws, wrote on his blog that the court's order lessens the chance Democrats will have to appoint a replacement. That's good news for Orman, since it increases the odds he will not have to compete for anti-Roberts voters with a Democratic opponent.
"The effect of this order is to delay things beyond the point at which it would make sense for Democrats to put a name on the ballot," wrote Hasen, a professor of law and political science at the University of California, Irvine. "That is, by the time the issue would get back to the Supreme Court, ballots may have been printed. Democrats had been hoping to run out the clock in this case, and this is a big order helping that cause.
As the Topeka Capital-Journal notes, Orel is described in documents as a registered Democrat but is the father of a field director for Republican Gov. Sam Brownback's campaign.
The state Supreme Court ruled last week that Taylor, who ended his campaign on Sept. 3 , fulfilled all the legal requirements to be removed from the ballot. Republicans sharply criticized the decision and vowed to try to force Democrats to appoint a replacement.
Orman is a former Democrat and Republican who has not said who he would caucus with if the Senate majority comes down to him. Polls show a close race between Roberts and Orman.
The state has already sent out overseas and military absentee ballots without a Democratic Senate nominee on them. They are accompanied by a disclaimer indicating the ballot may change.
But the longer the legal fights drags on, the smaller the chance Republicans will get what they want: A Democratic nominee on the ballot.