AG Schmidt wades into Trump election feud, COVID-19 mandates in Kansas, ‘LA Law’ vibe

Social media puts megaphone to legal claims otherwise worth a whisper

By: - December 21, 2020 3:59 am

Kansas Attorney General Derek Schmidt (Sherman Smith/Kansas Reflector)

TOPEKA — Kansas Attorney General Derek Schmidt’s office was inundated with input from more than 20,000 people eager to share views on whether President Donald Trump had victory ripped from his grasp.

“I think people on both sides have very strong feelings,” Schmidt told the Kansas Reflector podcast. “And, I think President Trump has been a person who people either love or hate.”

It was in that context Schmidt added his name to a long-shot lawsuit spawned in Texas and supported by more than a dozen other state attorneys general. It was designed to toss voting results in four states and possibly undo Trump’s election loss to President-elect Joe Biden. The possibility of a reversal triggered the flood of email to Schmidt, a Republican in his third term as attorney general.

Some contacting the attorney general thought Trump’s assertions about misconduct in swing states — not the deep-red Kansas — were genuine, while others considered claims of the president and his allies to be absurd.

“You’ve got some that think that, you know, I absolutely had to do this, and you’ve got others that think, how dare I do this. Now, you know, I don’t make legal decisions based upon how many emails we get. I think there’s a real legal question here that ought to be answered,” Schmidt said.


States rule elections?

Schmidt said the Texas case, which the U.S. Supreme Court declined to hear, touched on a significant constitutional question. The U.S. Constitution says the time, place and manner of presidential elections must be determined by state legislatures.

However, Schmidt said, a court in Pennsylvania was persuaded the COVID-19 pandemic necessitated circumvention of a state law requiring valid mail-in ballots to be received at the election office by close of business Election Day. A court ruling enabled counting of Pennsylvania ballots arriving up to three days after the election.

Kansas Attorney General Derek Schmidt signed onto a brief with more than a dozen attorneys general in a Texas lawsuit questioning swing-state vote counts in the election President Donald Trump lost to President-elect Joe Biden. (Tim Carpenter/Kansas Reflector)
Kansas Attorney General Derek Schmidt joined a brief in a Texas effort to question swing-state vote counts in the election President Donald Trump lost to President-elect Joe Biden. The U.S. Supreme Court declined to hear the case. (Tim Carpenter/Kansas Reflector)

“There’s nothing inherently wrong with allowing late-arriving mail ballots to be counted as Kansas does,” he said. “But the difference is in Kansas, the Legislature made that decision and wrote it into the statute. In Pennsylvania, the legislature said got to have it in by Election Day. And the court said, despite that, we’re going to substitute our judgment for the legislature.

“The question is, is that merely a fight for Pennsylvania? Or, is that a fight for everybody who votes in a presidential election?”

Schmidt said he signed on with Missouri and other states because the lawsuit touched election fabric of Kansas as well as the nation.

He appreciated, too, some of the more colorful allegations of election mischief raised by Trump’s supporters were thin, but easily exploited in the social-media culture.

“The ability to communicate instantly and widely on social media … put in a megaphone to things that otherwise would have been perhaps whispered,” he said. “So, all that’s my way of saying, you know, there’s a process. The process is playing itself out. We took, you know, one step into that.”


Emergency power

Schmidt said the 2021 Kansas Legislature and Gov. Laura Kelly had an opportunity to revise state emergency management laws that weren’t written while contemplating a protracted pandemic. He said Kansas statute didn’t satisfy civil libertarians who resist COVID-19 orders nor public health advocates eager for aggressive executive action in the crisis.

“That’s sort of the core of some of these ongoing and really passionate disputes,” Schmidt said.

Kansas Gov. Laura Kelly, a Democrat, has struggled to convince county officials to abide by her executive order regarding the wearing of face masks during the COVID-19 pandemic. (Sherman Smith/Kansas Reflector)
Gov. Laura Kelly, a Democrat, has struggled to convince county officials in Kansas to adhere and enforce her executive order regarding the wearing of face masks during the COVID-19 pandemic. More than 200,000 Kansans have been infected by the virus (Sherman Smith/Kansas Reflector)

The Kansas Department of Health and Environment reports that as of Friday coronavirus had infected 200,000 and killed 2,341 across the state. In December, testing shows it has so far infected 43,000 and proven lethal to 780.

Schmidt said there could be legitimacy to a lawsuit filed by owners of a Sedgwick County fitness studio. Bootcamps Inc. didn’t object to government action to suppress the pandemic. Instead, plaintiffs were seeking compensation for sustaining a disproportionate share of the cost of supporting that public good. The attorney general said he was surprised the litigation hadn’t been initiated sooner.

“My own view is the bigger issue here is, as a matter of public policy, should there be a mechanism for compensation?” he said. “I think the answer to that, at a philosophical level, is yes.”

What about state law enacted in June allowing county officials to opt out of a governor’s order that people wear a mask in public to deter spread of a lethal virus?

“Do I think that at the end of the day, there ultimately can be a power of government to order a public health mitigation method? I do. Do I think that our current law, you know, gives that power either to the governor alone or to other officials alone? No, I don’t.”

Schmidt said it would be helpful if Kansans chose to wear a face covering because it reflected sound public health advice — regardless of law or ordinance.


Proof of citizenship

Schmidt said he felt obligated to seek U.S. Supreme Court review of a federal judge’s decision declaring unconstitutional Kansas’ proof-of-citizenship requirement for people registering to vote. The high court declined to take up a case anchored in law inspired by former Secretary of State Kris Kobach, who unsuccessfully defended the statute at trial.

“That statute was passed by a very large bipartisan majority in both the state House and the state Senate,” Schmidt said. “People who now are vehemently and publicly opposed to it, voted for it. And I get it, things change over time. But nonetheless, you know, I view my job as attorney general to defend the statutes that are duly enacted in this state, unless there’s just no basis for a defense.”

He said an example of the non-defendable was a 1960s law forbidding advertising the sale of raw milk in Kansas. That’s not the case, he said, regarding the attorney general’s decision to defend the statute on proof of citizenship and join legal challenges to constitutionality of the Affordable Care Act.

Questions about roles of state and municipal government during the pandemic give rise to consideration of a mid-1980s decision by the Kansas Supreme Court striking a law granting the Legislature veto power over regulations crafted by the executive branch.

“The administrative state has really exploded,” Schmidt said. “We do so much more rulemaking now by administrative agency than we ever did. It’s certain the framers of our state or federal constitution would have never imagined so much.”


‘LA Law’ vibe?

Schmidt, who served in the Kansas Senate prior to election as attorney general, said he wasn’t ready to address speculation that he would seek the GOP nomination for governor in 2022. He did talk about how much he enjoyed serving as attorney general, suggesting duties of the job ranged from a loud “LA Law” episode to the solitude of a law library.

One day may require the attorney general to get into the weeds of an esoteric legal issue not part of any coffee-shop banter. Another day he could be interacting with people at the Capitol weighing law enforcement reform. Or he could be in Washington, D.C., to argue before the U.S. Supreme Court. He also might be drawn into administrative affairs at the office. There’s obviously the political dimension.

“If you’re a person that loves public service, if you love the political process — because it is an elected job — and if you love practicing law, if those three things are important to you, this is the absolutely perfect job,” Schmidt said. “There are very few opportunities in private practice for a breadth of practice that even approaches the types of issues we get to work on.”

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.