The GOP’s Last Ditch, Unconstitutional Ploy To Save An Unpopular Senator’s Career From Extinction

CREDIT: AP Photo/John Milburn

Kansas Secretary of State Kris Kobach (R)

Kansas is in the midst what is almost certainly the most unusual Senate race of the 2014 cycle. Democrats want their candidate off the ballot. Republicans are deploying every legal maneuver they can muster to keep a Democrat on the ballot. And the GOP’s latest tactic is almost certainly unconstitutional.

To explain, Kansas is a blood red state, where Republicans can normally win statewide elections with ease. Incumbent Sen. Pat Roberts (R-KS), however, is very unpopular; only 29 percent of likely voters approve of his performance, according to one poll. Meanwhile, the front-runner in the race to determine whether Roberts keeps his job is neither a Democrat nor a Republican. It is Greg Orman, an independent candidate who’s been coy about which party he will caucus with if he is elected to the Senate.

The Democratic candidate in the race, a prosecutor named Chad Taylor, withdrew from the race in a likely bid to boost Orman’s chances of beating Roberts. On Thursday evening, the state supreme court held that Taylor’s name should indeed be removed from the ballots, despite efforts by the state’s Republican Secretary of State, Kris Kobach, to keep it there.

So, to summarize, Pat Roberts is the incumbent Republican, and he’s likely to lose to Orman, who may or may not help Democrats keep their majority if he’s elected. Democrats would rather have a senator who might caucus with them than a senator who would never caucus with them, so they’ve withdrawn their own candidate from the race in an apparent effort to prevent him from acting as a Ralph Nader-style spoiler. Republicans, meanwhile, very much want to keep a Democrat on the ballot in the hopes of splitting the anti-Roberts vote.

Not long after the Kansas Supreme Court ordered ex-Democratic candidate Taylor removed from the ballot, the GOP announced its next move. “Democrats now have a clear legal obligation to name a candidate to fill the vacancy on the ballot,” according to a statement by National Republican Senatorial Committee spokesperson Brad Dayspring. Kobach made the same claim, citing a state law which provides that “[w]hen a vacancy occurs after a primary election in a party candidacy, such vacancy shall be filled by the party committee of the congressional district, county or state, as the case may be.”

“This says ‘shall,'” Kobach quipped. “I don’t know how anyone can read ‘shall’ to mean ‘may.'” Kobach also indicated that he may sue the state’s Democratic Party in the likely event that they refuse to name a candidate.

The Kansas law Kobach cites does indeed say “shall.” Yet, as election law expert Rick Hasen points out, a higher law is likely to intervene here. “It seems like it would be a tough First Amendment claim to FORCE a party to name a replacement,” according to Hasen.

Hasen is correct. The Supreme Court has long held that the First Amendment protects a freedom to choose who you associate with. Part of this freedom, moreover, is a freedom to disassociate yourself from people or organizations you find disagreeable. As the Court explained in 1984, “Freedom of association . . . plainly presupposes a freedom not to associate.”

Indeed, this is a principle conservatives have wielded with great success in the past. In Boy Scouts v. Dale, the Court held that the Boy Scouts were immune to a state law banning anti-gay discrimination because the Scouts believe “that homosexual conduct is inconsistent with the values it seeks to instill in its youth members.” Requiring it to include a gay assistant scoutmaster, according to Boy Scouts would “surely interfere with the Boy Scout’s choice not to propound a point of view contrary to its beliefs.”

If the Kansas Democratic Party were required to name a candidate against their wishes, that would also be a form of forced association. The state of Kansas would, in effect, require a political party to announce that a particular candidate is their choice to serve in the United States Senate, even though this endorsement would not reflect the party’s real beliefs. That’s not something the First Amendment permits.