How a Kansas ballot dispute could determine control of the US Senate

In the end, the fate of the US Senate majority could come down to a legal battle over a technicality in Kansas.

While that's certainly oversimplifying things a bit – especially with polling results now showing that GOP incumbent Pat Roberts is in trouble in Kansas regardless of what the Kansas Supreme Court decides – the decision over whether to keep former Democratic candidate Chad Taylor's name on the ballot could have big ramifications. The court heard arguments in the case Tuesday, and is expected to issue a decision before the end of the week, in time for overseas absentee ballots to be printed.

Before Mr. Taylor dropped out in early September, it was a three-way race between Senator Roberts, Taylor, and Independent candidate Greg Orman. Roberts's supporters hoped the anti-Roberts vote would be split between Taylor and Mr. Orman. But with Taylor's departure – given without explanation – the dynamics of the race shifted dramatically.

A Public Policy Polling poll released Tuesday shows Orman ahead of Roberts 41 percent to 34 percent. Six percent said they'd vote for Taylor, 4 percent chose Libertarian Randall Batson, and another 15 percent were undecided. Interestingly, the pollsters did not disclose to respondents that Taylor had left the race – meaning that even if his name stays on the ballot, the momentum seems to be shifting toward Orman, who has not said which party he would caucus with in the Senate. When asked to choose between just Roberts and Orman, Orman's lead increased to 10 points, 46 percent to 36 percent, with another 17 percent undecided.

And with the fate of the Senate majority hinging on a handful of races, the outcome in Kansas is pivotal.

"We could be looking at a circumstance with Orman, if he wins – and that’s a real possibility, where you could have 49 Democrats [assuming Vermont Sen. Bernie Sanders (I) votes with them], 49 Republicans, and two Independents, with Orman and [Maine Sen. Angus] King," says Chapman Rackaway, a professor of political science at Fort Hays State University in Hays, Kansas. "These two men could become the most important men in the Senate."

The legal battle in Kansas hinges on whether Taylor is allowed to remove his name from the ballot without explicitly indicating that he is unable to serve, as required by Kansas law. Taylor submitted his paperwork just before the state's Sept. 3 deadline, but Kansas Secretary of State Kris Kobach – a Republican, who also happens to be a Roberts supporter – has ordered his name to remain on the ballot, on the grounds that he failed to submit a declaration of why he is incapable of fulfilling the duties of office.

Taylor, who says he was assured by an elections official that his name would be removed, filed a lawsuit. Given the close race, the outcome matters significantly: If even a small percentage of voters, unaware that Taylor is no longer in the race, vote for his name when they see it listed as the Democratic candidate, those are votes that, on a different ballot, might have gone to Orman.

In a hearing Tuesday, several justices sounded skeptical about Secretary Kobach's decision to keep Taylor's name on the ballot, wondering why citing the law wasn't the same as declaring an inability to serve. Kobach, meanwhile, has said that even if the court forces him to remove Taylor's name from the ballot, Democrats must by law find another candidate – something state Democrats have said would be impossible. After the hearing, Kobach said that he would file his own petition to the state's Supreme Court if Taylor's name is removed and Democrats don't offer a new candidate.

In a USA Today poll released last week – the first since Taylor's decision – Orman topped Roberts by a single point (within the poll's margin of error) and Taylor got 10 percent. In that poll, pollsters informed voters of Taylor's decision and the race's dynamics. But in the most recent PPP poll, in which voters were not prompted before asking who they would vote for, a majority of Taylor supporters indicated they knew about his decision and most said they thought he should be allowed to remove his name.

At this point, the momentum seems to be going Orman's way – in large part due to Roberts's unpopularity. In the PPP poll, just 29 percent of voters said they approved of his job performance, compared with 46 percent who disapprove. In comparison, Orman's ratings are fairly good, with 39 percent of voters saying they have a favorable opinion of him, compared with 19 percent who have an unfavorable opinion – a favorability margin that has increased 8 points from a month ago, PPP notes, indicating voters seem to like him more as they know him better.

Orman "has clearly seized on a time where anti-incumbency [sentiment] is raging," says Professor Rackaway. "And also concerns about Roberts's commitment to Kansas. It's the perfect combination for someone like Orman to step in. Taylor is looking increasingly less important as this goes on."

Still, in PPP's analysis of the polling results, they note that there are some results that should give Democrats pause, and indicate things could change in the next two months.

"Despite their current support of Orman, 49 percent of Kansans still want a US Senate that is controlled by the Republicans to only 39 percent who want one controlled by the Democrats," PPP writes. "Right now only 62 percent of people who want a GOP-controlled Senate say they're going to vote for Roberts. If he can effectively nationalize the race ... and get those folks who want GOP control to cast their votes for him, Roberts will find himself in a much better place."

* Material from the Associated Press was used in this report.