Thomas Haney, a lawyer suing the Kansas Democratic Party in a suit that could save Sen. Pat Roberts’ (R-KS) uphill bid for reelection, showed up to court on Monday missing a crucial element of his case — his client.
Haney’s clientless court appearance is the latest round in a Senate race that proceeded rapidly from curiosity to near-farce. Roberts is an unpopular incumbent who initially faced two opponents, Democrat Chad Taylor and independent Greg Orman. Taylor, however, withdrew from the race in what was almost certainly an attempt to boost Orman’s chances of defeating Roberts (polls show Orman as likely to defeat Roberts in a two man race). Taylor’s successful attempt to withdraw from the race spawned one round of litigation, which ended with the state supreme court holding that Taylor’s name should be removed from the ballot.
Haney was in court as part of a second round of litigation, this one trying to force the Democratic Party to name a replacement candidate to take Taylor’s place. Should this lawsuit prevail, the non-Roberts vote would be split between two candidates, increasing the chances that Roberts will be reelected. Yet Kansas’ judicial system does not permit just anyone to bring a lawsuit, rather, only a person who experienced a legally “cognizable injury” has standing to sue in Kansas.
Which brings us back to Mr. Haney’s client.
The client is a man named David Orel who claims that he wants to have the opportunity to vote for a Democrat in November, and that the Democratic Party’s decision not to put up a candidate injures him by denying him this opportunity. Orel’s claim that he wants the chance to vote for a Democrat is dubious, however, as he is the father of one of Republican Gov. Sam Brownback’s campaign staffers. For this reason, an attorney representing the Kansas Democrats wanted to question Orel on whether he is actually a Democratic voter or if he is, instead, a faux-Democrat recruited by Roberts’ allies.
The three-judge panel hearing this case reportedly grilled Haney with questions about why his client was not present in court, although they have yet to issue a ruling in this case. Even if the judges hold that Orel may bring this lawsuit despite his questionable standing to be in court, the suit is unlikely to succeed on the merits. Among other things, the First Amendment protects an organization’s right to choose who it wants to associate with, and, as the U.S. Supreme Court explained in 1984, “[f]reedom of association . . . plainly presupposes a freedom not to associate.”
Requiring the Democratic Party to associate itself with a candidate it does not wish to endorse would almost certainly violate the party’s First Amendment rights.