What the Constitution Says About Parents, Public Schools, and Students' Gender, and What it Doesn't (Yet)

[An expanded version of a piece which appeared in the Wichita Eagle and elsewhere on February 27, 2024.]

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler--arguably the best-known journalist in Wichita, Kansas’s largest city-- picked a fight with Kansas’s Attorney General Kris Kobach--arguably the best-known politician in the whole state--over essentially this exact problem, and Kobach--who, despite his protestations, has never been retiring when it comes to defending his beliefs--picked back. Both of them drag multiple ancillary issues into their argument, but let’s focus on the legal heart of their dispute, and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies which allegedly require teachers of students who identify as trans or non-binary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents' right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights. (In response, two school districts publicly changed their policies, while four others continued to defend them.)

With the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: while a bill was proposed in the Kansas legislature last year that would have extended parental rights in this exact context, it lacked the support to make it out of committee, and as a result, these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: what is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century (and most of which rested upon substantive definitions of "privacy" as central to personal "liberty," a claim which Dodd v. Jackson Women's Health Organization, the anti-Roe v. Wade decision, may have unintentionally (?) declared invalid, interestingly enough) have established that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns, and privacy. Moreover, other cases insist that parents have to demonstrate a harm which “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies which had been locally and legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point—a 2022 federal district court decision which forbade Geary County’s USD 475 from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’s Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

So ultimately, what is being fought about is unsettled law. I suspect that Kobach, ultimately, will end up being found correct, or at least mostly correct, in his interpretation by the Supreme Court--partly because of the contemporary dominance socially conservative justices enjoy on the Court, but also partly because some of these policies can be legitimately interpreted as requiring public school teachers to purposefully hide information from or even lie to parents, and the case law supporting parental rights, stretching back long before the current make-up of the Supreme Court, will make that possibility very difficult to uphold. But in any case, for now Kobach's his letter reflects broad cultural assumptions rather than controlling constitutional principles. So round one, I think, has goes to Lefler.

Two Steps Forward, One Step Back for Kansas Republicans

[This is a somewhat expanded version of an editorial which recently appeared in The Wichita Eagle and elsewhere.] 

Last weekend Mike Brown, a former Johnson County commissioner and a failed primary candidate for GOP Secretary of State Scott Schwab’s job, and someone who has expressed sympathy on multiple occasions for former President Trump’s lies regarding the 2020 election results, was chosen to be the new chairperson of the Kansas Republican party. This is a frustrating result for those local Republicans--and I know they're out there; I know several myself--who keep hoping to separate election conspiracies from their party’s substantive platform, an effort that, of late, one could argue that was, all things considered, going pretty well.

It's easy for the terminally online to forget, but it needs to be remembered that for a great many ordinary citizens, including a significant minority of Republicans, the claims of voter fraud and rigged elections promoted by Trump, culminating in the attack on the Capitol on January 6, 2021, had always made little sense, a feeling that has only grown more pronounced outside the hot-houses of conservative websites (and, unfortunately, Republican leadership caucuses, but even there many Republicans are silently trying to extricate themselves). This drift has become even more pronounced as time has gone by; recent polls show that election denialism declined by more than half between the elections of 2020 and 2022, and overall only a third of those not already caught up in conspiracy theorizing say they find such paranoia understandable. In short, continuing to obsess and nitpick over super-close elections has increasingly come to seem to most Americans as pointless, dangerous, and strange.

Kansas, however, has its own long and separate history with Republican electoral paranoia. Long before Trump started ranting about how he was robbed—and started harassing GOP officials and his own vice-president to get them to support his lost cause—we had Kris Kobach, who for years as Secretary of State made claims about illegal voting he was never able to prove, and demanded prosecutorial power to enforce voter restrictions which were thrown out as unconstitutional. Meaning that Kansas Republicans, including the ordinary rank-and-file ones, have long seen hysteria over election security overshadow their other priorities, which is why the failed (but still very close!) efforts to derail Kobach in his race for attorney general had significant Republican support.

Still, looking across the country, particularly at defeated, Trump-endorsed, non-existent voter-fraud-obsessed Republican candidates in Arizona and elsewhere, many Kansas Republicans probably had reason to feel hopeful for the direction of the state party. Despite the closeness of his loss to Governor Kelly, Derek Schmidt left the stage without recriminations (same thing for Kobach, who not only made no criticism of his squeaker of a win but also spoke only of his conservative agenda, and said nothing about contesting the governor's equally narrow win). Schwab won re-election handily in the midst of national under-performance by other local Republicans, all while insisting the Kansas elections were secure and reliable. Perhaps they were shaking off the preoccupations of their former national leader?

Many are, no doubt. Unfortunately, some Kansas Republicans are still obsessed with the idea that ballot drop-boxes or mail-in ballots allow nefarious actors to skew or falsify election results. And now, they have a state party chair on their side.

When running against Schwab in the Secretary of State GOP primary, Brown mocked his opponent for refusing to claim the same voter-hunting power Kobach had previously abused, insisted that all ballot drop-boxes should be banned, and implied that Schwab was at fault for not investigating outlandish, unsubstantiated claims about ballot-dumping and more. As party chair, he obviously won’t be involved in setting priorities for the Secretary of State, much less shaping legislation. Nonetheless, his narrow, 88-90 vote triumph among state party leaders—powered mostly by conservative Republicans in the 3rd District, frustrated by seeing their message increasingly rejected by moderates in the Kansas City area and the resulting “purple creep” that, among other things, kept Representative Sharice Davids in office, despite a Republican gerrymander explicitly designed to get rid of her in 2022—is surely frustrating to those Kansas Republicans who are hoping to move their party out of Trump’s shadow.

Of course, Trump may well be back at the top of the national GOP ticket come 2024, so perhaps the state Republican is just getting ready to fall in line. But for those many Republicans who recognize—even if they keep their views quiet—how hopeless and dangerous adhering that line is, the Brown’s selection likely strikes them as an unfortunate stop backwards, while others try to push ahead.

Wondering About a (Highly Unlikely, But Not Inconceiveable) Local Wave

At the Great Plains Political Science Association annual conference held last weekend at Wichita State University, four political observers--three of them Insight Kansas contributors--were asked to make their predictions for next week’s elections. All four said they believed Sharice Davids would win re-election in the Third Congressional District; three out of the four said they believed Governor Laura Kelly would defeat Derek Schmidt and be re-elected; and two out of the four said they believed Chris Mann would defeat Kris Kobach and be elected Kansas’s attorney general. But further down the ballot, and pretty much everywhere else besides, maybe, the 3rd District and Kansas's northeast corner? The agreement was near unanimous (and in line with the latest public opinion analysis): November 8 will likely be a red wave, terrible night for the Democrats.

“Near unanimous,” of course, means at least one voice of dissent. The dissenter was me.

Am I totally confident in my belief that Kansas, come November 8, may provide national Democrats with some tiny, consoling blue ripples during an otherwise rough night (which, on the macro level, I agree it will be)? Not remotely. So why bother saying so, when the usual political science variables—a midterm election during the first term of an unpopular President at a time of high inflation—point towards a Democratic bloodbath?

Maybe it’s just contrariness. Or maybe it’s the lesson of two elections. Or maybe, once again, it's the yard signs.

The first election I’m thinking is the one we just had: the August primary vote on the “Value Them Both” amendment. That the size of the victory enjoyed by abortion-rights supporters has been much commented on—but more relevant here is just how much of a surprise it was.There had never really been a vote like that one before: a straight-up, yes-or-no vote regarding the right to at least minimal abortion services. Frankly, no one really had any data to work with. Reasonable guesses could be made on the basis of demographics or party affiliation—but no serious observer could have guessed that the amendment would lose by nearly 20 points (I certainly didn't). 

The 2016 election of Donald Trump similarly took a huge number of people by surprise—but in that case, the surprise wasn’t because of the lack of data, but because so many people (myself included) didn’t take seriously all the relevant information—the unpopularity of Hillary Clinton, the shifts in white voting patterns in upper Midwestern states, etc.—which pointed to the real chance that Trump could win. It seemed to so many of us just so unlikely and bizarre that we discounted it. 

So we come to the Kansas 2022 elections, where we’re not in the same situation as before the August amendment vote. In fact, thanks to that vote, the Kansas Speaks survey, and some other data points, we know a fair amount, particularly about high levels of voter engagement among Democratic-leaning groups, and the early numbers which suggest that engagement may be continuing into the week of the election. We also know that Kelly’s approval numbers are pretty good, and that abortion, along with Medicaid expansion and medical marijuana legalization, are motivating many voters--presumably in a Democratic direction.

But are they motivating enough voters to entirely overcome the huge, historical advantages which Republicans enjoy in Kansas? Or all the other already-mentioned disadvantages weighing down Democrats this year? Probably not. 

But in this election I don’t want to discount the data out there, however limited it may be. Yes, the election fundamentals and the polling (as flawed as much of it may be) suggest fairly comprehensive Republican gains, both across the nation and here in Kansas as well. Nonetheless, I believe there really is a chance that not only will we see some top of the ballot Democrats winning in this state, but also see enough Democrats holding on to or flipping state houses races—perhaps in Manhattan, Shawnee, Emporia, Hays, Hutchinson, or even here in thoroughly polarized Wichita—such that the Republican super-majority in Topeka could actually be lost, bizarre as that may sound in the wake the Republican redistricting of state and congressional legislative districts earlier this year.
(I admit that I added Wichita to that list out of simple self-interested curiosity. I'm looking at Representative Dan Hawkins, my neighborhood's representative in the state house, and the House Majority Leader--a pretty powerful figure in the Kansas legislature. Yet in light of what I've written before about Wichita slowly turning purple, if not blue, we've seen Hawkins's percentages consistently decline in this strongly Republican area through the election cycles since the last redistricting, from 70% down to 60%. And against that you have some local Democratic urgency, an urgency I see with his opponent Mike McCorkle--learn all about him here--whose team is managing to place yard signs simply everywhere around our little part of Wichita, meaning that he is either better funded than past local Democrats, or has a better team knocking doors and placing signs than candidates of the past, or just plain has more voters out there willing to show public support for him. Add it all up, and I wonder if Hawkins might actually be brought down to 50% of the vote this time. Or, dare I say it...maybe even a smidge lower?)

Again, I’m not remotely confident about any of this. All the macro level stuff I mentioned above remains true--and frankly, the smart money is to always bet on what the macro trends say. But after 2016 and 2022, I’m not so confident as to discount the possibility of the truly unlikely happening either. I mean, what's the worst that can happen--I get it all wrong? I've eaten crow before, I can do it again.

Seven Theses on Kansas, "Popularism," and Value Them Both

Well, my predictions from yesterday were wrong (mostly; I was still right about Kris Kobach getting the Republican Attorney General nomination). And while the image I used yesterday to reflect the diversity of the No campaign here in Wichita didn't unintentionally predict the final state-wide vote totals (59% voted No, not 75%), the fact is it was a lot closer than I or any other serious political observer here in Kansas that I'm aware of actually believed was possible. So what more is there to say.

Well, a few things, anyway:

1) Let me repeat what I just wrote: nobody I am aware of who as at all seriously engaged in following these campaigns--and I've talked to people at the Kansas Reflector, at Vox, at Newsweek, at ABC News and KAKE News locally, and many more places about all this--was predicting that in an August primary election, in a strongly Republican state, would result in a win for abortion rights by 10 points, much less nearly 20 points. As the very first election to take place anywhere in America after the overturning of Roe v. Wade and the ending of a national constitutional guarantee of at least limited access to abortion services, the size of the Value Them Both amendment's defeat is bound to create a lot of political noise.

2) Political noise...but maybe not immediate political changes. Political parties are mighty beasts, and different factions or interest groups that have put in years of work and money and organizational strategy in shaping their platforms, and thereby socializing and contributing to the further self-sorting of voters who look at those parties and platforms, aren't going to want to see them make an about-face after just one election. Here in Kansas, I would expect that Governor Kelly will express gratitude for the results, and then proceed to run her re-election campaign in with the same wonky focus on Medicaid expansion and other nuts-and-bolts issues that she's always preferred; similarly, I bet that Derek Schmidt will prefer to say as little as possible about the failed amendment, and run the same "Governor Kelly serves the radical left in Washington DC" ads that he's team has no doubt long since prepped, only with references to abortion very much cut back.

3) Why? Because Schmidt will know, as will leaders of the GOP's current super-majority in Topeka, that there is simply no honest way to parse these numbers without acknowledging that there were a good number of Republicans--including at least a small-but-nonetheless-meaningful slice of Kobach-supporting, low-propensity, normally-November-voting-only, self-identifying conservative Republicans!--who voted against the amendment. The majority of the Republicans in Topeka come from safe enough seats not to worry about alienating those Republicans who wandered off the anti-abortion reservation this particular election...but there are at least a few who will worry about them, and Schmidt, who needs to hold on to votes in the same urban counties which Kelly won in 2018, will worry about them as well.

4) So I suspect that the short-term consequences of this vote won't be especially visible. It's the medium-term consequences, the post-November 2022 consequences, which could potentially put some real force behind all the chatter which Value Them Both's defeat is generating. I could be wrong, of course; my track record suggests I probably will be. Maybe the Kansas GOP will immediately throw all their efforts behind voting to unseat state supreme court justices in November, and immediately start talking about taking another shot at amending the constitution, this time grudgingly including language about how the Kansas constitution does guarantee that there cannot be a total, no-exceptions-for-rape-or-incest-or-medical-emergency abortion ban. But I doubt it; rather, I think they're going to want to wait to see how this vote is reflected in other votes nationally, and how the overall abortion discourse continues to evolve.

5) After all, in the meantime there is probably going to be a small, perhaps invisible, but almost certainly nonetheless viscous, fracture within the Kansas GOP to deal with, all while the gubernatorial election is going on. Because there will be Republicans--the small-government, business-oriented, libertarian-inclined, individualistic Republicans from rural Kansas, the pragmatic folks that, before Brownback and Trump would have been considered the backbone of the party--that will have serious questions for why their party essentially out-sourced themselves to Kansas Catholic archdioceses for this election, and why they ended up (by driving all the cultural conservatives to the August voting booth) saddling themselves with a three-time loser like Kris Kobach as their attorney general candidate. That fracture doesn't exist in isolation, of course; the divide between the numerous micro-factions that make up the much-declined (but not extinct) moderate bloc of Republican voters and the even more numerous micro-factions that make up the dominant (but not completely unobstructed) conservative, Trumpist bloc of Republicans, has been a feature of Kansas politics for decades, and this internal fight will be folded into it. Will it push the party towards a new balance? Dion Lefler, who has watched Kansas politics as closely as anyone I know, thinks it might; we need to wait and see.

6) As we wait for the medium- and long-term consequences of a strongly Republican state voting in a way that actually reflects the existing polling data here in the state, as opposed to being led by party allegiance to support the much more extreme positions adopted by minority anti-abortion factions in their parties, to play themselves out, one note about "popularism." While there are many ways to make use of this wonky idea which has emerged among Democratic activists over the past couple of years, the basic idea is that Democrats hurt themselves when they allow their party to become associated with liberal or progressive or radical or socialist ideas that don't poll well, even if their purported consequences are ones voters clamor for. The question, as my old friend Damon Linker posed months ago, is whether the insights of popularism--that is, building campaigns around those ideas which poll well with ordinary voters, keeping the question of whether or not they are truly empowering or "populist" insofar as the interests of ordinary people are concerned as a secondary concern ("normie politics," as Freddie deBoer put it)--apply to Republicans as well. Noting the extreme abortion bans popping up through legislative action throughout the country in the wake of Roe's overturning, Damon wondered if Republicans are "governed by the principle that there are and can be no negative electoral consequences from moving too far to the antiliberal right on cultural issues." If so, then the defeat of Value Them Both might be seen as sign that some Republicans had had enough, or at least were content with what they had (abortion is already quite heavily regulated in Kansas), and didn't want to see the status quo disrupted, even if that meant challenging their own party's priorities in this primary election.

7) Finally, if nothing else, let's enjoy a couple of news cycles where people wonder how on earth an anti-abortion referendum could have lost in Kansas. The context is totally different, but I can’t help, as I look at the incredulity around me, but remember an exchange during the debate over the non-discrimination ordinance adopted here in Wichita by the city council last year. City ordinances to explicitly list and defend the rights of LGBTQ citizens had been pushed by many groups throughout Kansas for years, and Mayor Brandon Whipple made supporting such a priority. It passed by a 6-1 vote, but not before much argument on the council, some of it contentious, and two marathon open city council meetings that went on for hours, with dozens of people showing up to elaborate about how an NDO was an attack on religious freedom. At one of those meetings, a woman showed up and looked at the council (which ultimately, after many delays, voted for the ordinance by 6-1), shook her head, and said, in essence, “this isn’t the Kansas way, this isn’t the Wichita way, I don’t know who you people think you’re representing.” When she saw Mayor Whipple roll his eyes, she zeroed in on him, observing that her grandchildren deserved to grow up in a Christian world, "not Brandon Whipple’s world." I’ve never heard the conviction held by that shrinking-but-still powerful segment of Kansas voters that true “Kansas values” can’t possibly include abortion rights, LGBTQ protections, etc., expressed so pithily. Until today, that is.

Three Predictions Regarding the Abortion Amendment Vote in Kansas Today

These four images are just a sampling of the yard signs which have sprouted everywhere in my west Wichita neighborhood over the past couple of months; a complete record of the public expressions about today's amendment vote in yards within just a half-mile of my home would have to include twice as many pics. Do the three "No" signs to the one "Yes" sign suggest that the Noes outnumber the Yeses three to one? No, actually around where we live, the Yeses visibly outnumber the Noes, though only slightly. But every single Yes sign I've seen--not just in our neighborhood, but everywhere throughout the city--is the same as the one in the lower right-hand corner, whereas I'm aware of a half-dozen different No signs besides the ones I've included here, put forward by a close to a dozen different organizations, and that diversity is worth thinking about. 

And yes, I have thought about it, as I have many other things having to do with this amendment, both politically and personally. And I've talked about it: to the Kansas Reflector, to Vox, to KAKE News, and to "Good Morning America" on ABC (both video and print). So after all this thinking and writing, I must have some opinions about the vote itself, right? Well, sure. Here are three, for anyone who cares. (And please remember: my track record when it comes to predictions is pretty horrible.)

1) I think the amendment will pass, but only barely, perhaps by as little as 1% of all the votes cast, or even less. I'm thinking about the election of 2020, where Democrats were as organized and well-funded and had as effective a get-out-the-vote operation in support of Barbara Bollier's U.S. Senate run as I've ever seen here in this state where Republicans outnumber Democrats by more than 2-to-1 in most precincts. And the result, at least by most readings of the election results, was that all that money mostly managed to activate lots of low-propensity, non-ideological, historically Republican voters...who ended up mostly voting for the Republican in the Senate race, which resulted in Bollier, despite benefiting from comparatively fantastic turn-out numbers, losing decisively. 

I suspect something similar will happen here. The Republican majority in Topeka wanted this election to take place during an August primary election, not a general election, assuming the more ideologically passionate primary electorate would be much more likely to vote to open the door to much more extreme anti-abortion legislation than Kansas currently has on the books than would the more ambivalent and diverse electorate that shows up in November. That assumption will work for them, I think, despite what will be a large increase in the turnout of Democrats and unaffiliated voters, thanks to the overturning of Roe v. Wade which generated great consternation, fear, and energy among defenders of abortion rights and unleashed a huge amount of anti-amendment money. The only reason, I predict, that their plan will still work in the face of that is because the conservative anti-abortion faithful will be joined by a small percentage of the less passionate Republican electorate that will show up to vote.

2) The smallness of the victory will throw Republican unity over legislative priorities and electoral prospects in Kansas into chaos. Note what I just said above: I'm guessing that the percentage of the low-propensity Republican voters who support the amendment will be "small"--sufficient to give the Yes campaign a win, but only a tiny one. Because along with the high turnout of Democrats and various unaffiliated, low-propensity abortion-rights defenders, you're going to see a good number of Republicans, many of whom that might otherwise score themselves as quite conservative, deeply distressed by this result. Between the purges of Republican moderates orchestrated by Governor Brownback between 2010 and 2014, and the Republicans that have taken themselves out of the game since Trumpism came to dominate most of the Kansas GOP, it's not like the Republican moderates have anything like the influence within the party which they had decades ago. Still, they are out there--and they depend upon those low-propensity Republican voters, along with the occasional moderate Democrat, to stay in office. The majority of those two groups will turn out to have voted "No" on the amendment, which means they will go into the November elections with ready-made target on their backs: they'll easily be painted as just another extremist, one of those who orchestrated the amendment and is looking to impose a total, no-exceptions, Oklahoma-style abortion ban. 

How will they defend themselves against that charge? I presume by promising like mad to their voters that they will never, ever, ever, support a super-majority challenge to Governor Kelly's veto of extreme abortion legislation. Will that work? It will for some of them. But between the tiny number of moderate Republicans in Topeka either running scared or losing to angry Democrats and the occasional Republican who feels totally burned by what their party pulled off in August, the Republican super-majority in Topeka, at least when it comes to abortion, will disappear. Governor Kelly will position herself and her veto pen as the only thing standing between the ambivalent, diverse voters of Kansas's 10 or so urban counties (which, given that the rural counties which make up 90% of Kansas's territory having been mostly losing population for decades, are the only ones you need to win) and a total abortion ban, and that be winning argument. And because the Republican leaders in Topeka aren't idiots, they're going to be able to see all of the above clearly, and will try to force (with perhaps only moderate success) the firebrands in their party to shut up about abortion bans, and will attempt to pretend that the plans for extreme legislation that has already been floated in Republican circles simply doesn't exist--none of which will make those who bankrolled the Yes campaign for the Republican party at all happy. 

This is Kansas, so surely the Republicans will get it back together soon enough. But they won't, I think, do so soon enough to prevent enough of a fracturing of the GOP in November for Kelly and the state Democratic party to give themselves a fighting chance during what otherwise will likely be a blood-bath for Democrats nationally. Among other things, watch the Value Them Both true-believers put Kris Kobach over the top in the Republican primary for attorney general, and then watch him struggle mightily to turn around his losing streak as he goes up against Chris Mann, who will probably benefit from a decent number of those ticked-off non-culture-warrior, normally-November-only Republican voters, in the general.

3) The overall result of the vote, insofar as public health is concerned, particularly for poor women, will be very bad, but there could be a possible silver lining. The immense and multifaceted organizational and electoral work which amendment opponents have done over the past months won't be entirely for naught; I think, when the votes are all counted, it will be clear that they kept an August primary voter in a strongly Republican state with a large, passionate, and well-organized anti-abortion minority from walking away with a major win, holding them to a squeaker of a victory, with all the consequences I'm imagining above. But in the long run, assuming the variables at work in the abortion debate nationally do not markedly change, extreme anti-abortion legislation will probably come to Kansas eventually anyway, maybe even an Oklahoma-style total ban, though it may take until the end of Governor Kelly's second term to do put it together. For tens of thousands of Kansans, that development, if it turns out to be correct, will be very bad indeed.

But by that time, there's also a decent chance that enough Republican legislators, in the wake of what surely at least a handful of them will consider a to have been a Pyrrhic victory this Augut, could be convinced to go against their leadership, and Kansas will finally expand Medicaid, as every state surrounding us (including Oklahoma!) already has. Obviously, that's not going to help Kansas women without the means to travel who find their ability to choose for themselves how to deal with the anguish of a crisis pregnancy taken away from them by the government (if you've read this far and actually are an undecided voter, then please, if you care about those women at all, get yourself to a polling station immediately, vote No, and make my predictions irrelevant!). But it may give those trying to help those women a resource to build upon into the future, and that's not nothing, even if it's not enough.

Guess we'll find out how wrong I am soon enough.

What's the Matter with Kris Kobach?

[I put some thoughts about last night's Kansas primary election results up on Facebook this morning, and Chris Suellentrop, an editor at Politico, asked if I'd like to expand on one of my arguments for the magazine. The result--edited, polished, and punched-up--is here. Below is the original, slightly longer, and hopefully a little more nuanced version. Enjoy.]

As I write this, Kansas Secretary of State Kris Kobach leads Governor Jeff Colyer by fewer than 200 votes in our state's Republican primary. Neither has conceded, and even the least contentious possible outcome will inevitably involve further delays, possible recounts, and bad feelings. A divisive Republican primary is obviously hardly bad news for local Democrats--but I'm confident that a win by Colyer, rather than Kobach, would have been the best news of all.

Nationally, this may strike some as surprising. Wouldn't the Democratic candidate (long-time state senator Laura Kelly, an old and close friend of former Democratic governor Kathleen Sebelius and a politician well-connected to the state's Democratic power base in the northeast corner of the state) naturally prefer to run against a polarizing and unpopular figure like Kobach? After all, this is a man who has barnstormed across the country, selling barely-hidden nativism and immigrant-bashing, involving himself in failed lawsuits and political crusades that have left cities with legal bills in the millions and personal contempt charges which he's been able to foist upon Kansas taxpayers to pay in his behalf. He embraced President Trump's completely groundless claims about "millions" of undocumented residents voting in American elections, was appointed by Trump himself to lead an panel determined to expose this scandal, which of course ignominiously disbanded when no evidence could be found, and accusations about the false information Kobach's peddled through that panel are plentiful. (Kobach's own personal crusade to find illegal voting has resulted, in nearly eight years in office, all of nine convictions.) On top of all this, he simply hasn't done a very good job as Secretary of State; despite all his Fox News-broadcast concern about stamping out voter irregularities, technological glitches and confused instructions--many of them  related to Kobach's own legally blocked crusade to change citizenship requirements for voting and create new rules for purging the voter rolls in the state of Kansas--continue to be endemic. So what Democrat wouldn't want to run against a target like that, especially in a conservative state like Kansas where Democrats need to divide the opposition and recruit moderate Republicans to their cause?

The problem with this analysis isn't that it's wrong; it's that it's incomplete. A deeper appreciation of the current context in Kansas, of the history of the state Democratic and Republican parties, and of the unique challenges which Kobach may bring to this race is necessary.

First, it's not enough to say that Kansas is a conservative state. It is, of course, for a host of demographic and cultural reasons. But it is also a profoundly Republican state, with the close association between that political party and the attitudes and perspectives of the majority of the states (white) citizens extending back practically to the moment of state's entrance to the union on the brink of the Civil War. The Republican lock on state politics and its federal representatives isn't absolute--but it's pretty close. (Kansas hasn't elected a non-Republican to the U.S. Senate since 1939, and the last time Republicans lost control of the state senate was 1917.) Kansas was more riled by the Populist insurgency of the 1890s and early 1900s than any other state, but unlike elsewhere in America, the Democrats were not able to build on that insurgency, and Republican dominance returned in force.

The result of this long-time party dominance has meant, of course, that factions within that dominant party became more entrenched and, sometimes, combative. By the 1950s and 1960s, it was simply an accepted fact in Kansas politics that policy would always be determined by the relative, shifting, factional strength of three groups: conservative Republicans, moderate Republicans, and--always in third place--the Democrats. Over the last four decades of the 20th century though, that triangulation enabled Kansas's political class to maintain fairly stable, and relatively sustainable, fiscal policies, not to mention generally only moderately conservative cultural policies, with Democrats occupying the governor's mansion for 28 of the past 60 years, with Sebelius (and her Lt. Governor, Mark Parkinson, who took her place for the final two years of her terms when she left to become President Obama's director of Department of Health and Human Services in 2008) being the most recent. It is Sebelius herself (who had built up an very effective--if unfortunately very personal and region-specific--network of Democratic fundraisers and activists within Kansas through the 1980s and 1990s) who is frequently credited with a common adage in Kansas politics: "Democrats don't win in Kansas; Republicans lose." That is, when the Republican party can't unify its factions, or when they are burdened with a candidate that various intra-party factions dislike, Democrats have a window of opportunity.

This is what Democrats--and really, everyone on the left in Kansas--have been anticipating ever since the 2016 election. While nationwide the election of Trump left millions of liberals, progressives, socialists, and just plain ordinary Democrats feeling shellacked, here in Kansas those of us on the left could console ourselves with results that showed the "Brownback Revolution" finally coming apart. As is well known to anyone who ever Googled "Kansas" or "Brownback" or "tax experiment" anytime in the past six years, Sam Brownback, elected governor in 2010, brought with him into the legislature a core group of passionate, deluded believers in the old supply-side economic gospel; in 2012 he orchestrated successful primary challenges against multiple moderate Republicans, which when all was said and done effectively put one conservative faction entirely in charge of the state Republican party. The result was a "march to zero" plan to turn Kansas into a no-income-tax state, a plan that flew in the face of fiscal reality and had devastating consequences for Kansas's education funding, roads, and social services, to say nothing of the state's credit rating and overall socio-economic health. The dispiriting nadir for Kansas Democrats was Brownback's re-election in 2014; since then, through the 2016 primaries and elections where Republican moderates and Democrats finally started to push back, through Brownback's departure for a diplomatic post in January 2018 with a miserable approval rating, we have been watching the window for Democrats to make a showing in the state capital of Topeka only widen.

Jeff Coyler, the current governor, has barely had six months to build up any kind of momentum, and as Brownback's Lt. Governor, he has a near-impossible tightrope to walk. He has been obliged, by fiscal reality, legislative action, and state supreme court decisions, to acquiesce to dialing back Brownback's irresponsible vision and moving back towards more sustainable approaches to taxation and school funding, meaning he found himself occupying a "moderate" position in the state Republican constellation. Yet he couldn't easily own that position, rejecting Brownback's legacy and casting himself on the side of those who always fought against Brownback and his majority...because, of course, he was central to that very movement. Which means that the script which a Democratic opponent to Coyler would follow writes itself: emphasize his central position in what is widely regarded throughout Kansas--even by many members of his own party--as a failed Republican administration, watch him contort in his efforts to distinguish himself from his disliked predecessor while not alienating the true-believing base which forms the conservative faction in the party, and reap the benefits.

I've no doubt that Laura Kelly will follow essentially the same playbook in running against Kris Kobach, should he come the nominee. But I fear it won't work as well, simply because Kobach will carry so much national baggage into the campaign along with him that, even without making any claims in association with it--which would be completely out of character for Kobach; his ideological ambitions and national aspirations are plain to anyone who has followed his career at all--Kelly would find any laser-like focus on campaigning against the Brownback legacy complicated. This is not to deny that she couldn't find good, electorally salient arguments against all that baggage; frankly, anyone who doesn't accept the idea that state election offices all across the country must all be lying about or hopelessly confused about the supposedly massive problem of voter fraud in America (an idea whose level of acceptance outside of the White House is, to be generous, extremely small) could come up with good lines of attack against Kobach. But will such salient arguments actually be politically effective, in a state where being Republican is such a deeply engrained default for so many? I wonder. To point to an unpopular Republican governor, tie his former lieutenant governor to him, and say "Republicans need to get their house to order; time to send a Democrat in to fix things," is a message that has actually worked in Kansas's past. To do the same in the midst of Fox News-amplified noise about citizenship, immigration, race relations, and President Trump's tweets (and visits--if Kobach is the nominee, I suspect the question won't be whether Trump will come to campaign for his protégé, but whether he will come twice) will be most difficult, with less of a precedent to fall back on.

In the midst of all this, we also have Greg Orman--a wealthy, smart, relatively young and attractive, socially liberal, business friendly independent from the Kansas City area running for governor. With a socially conservative state politician as his running mate, one can't help but suspect that Orman has designed his campaign in anticipation of Kobach winning the nomination: he has checked all the boxes that would be necessary for him to be appealing to moderate Republicans who can't stand Kobach as their party leader and are frightened of the prospect of him becoming governor. With a less polarizing figure leading the Republican race, the appeal of Orman's proclaimed independence would be lessened somewhat; since part of his whole argument for himself is to be outside the familiar battles between conservatives, moderates, and Democrats from Kansas history, a race that was essentially a referendum of Sam Brownback, a referendum that could borrow from patterns familiar with Kansas voters--an unbalanced Republican party in need of correction!--might arguably give his pox-on-both-houses rhetoric less purchase. But with Kobach as the nominee, Orman will definitely be in the hunt--and the likely effects a serious independent candidacy will have on the Democrats in this Republican state are easy to guess.

None of this is to say that Kelly (and her running mate, Lynn Rogers) wouldn't have a chance against both Kobach and Orman, if that's what the final ballot ends up looking like. After all, the Brownback stink can easily be associated with Kobach as well (perhaps even better than with Colyer; unlike the current governor, who has been obliged to deal with the real world for at least a few months, Kobach aggressively embraces the Brownback tax legacy, promising to double-down on it). The key will be to keep the race as Kansas-specific as possible. But with the national attention and money which follows Kobach everywhere he goes, preventing him from transforming the race into a referendum on Trump and the future of America's civilization, as opposed to on a particular Republican governor's legacy, will be difficult. Every one of us the left here in Kansas should be hoping, I think, for absentee ballots or some other unanticipated event to swing the Republican nomination back in Colyer's direction. Either way, though, our work is cut out for us. (But of course, that's nothing new.)

Of Parties, Primaries, and (Gubernatorial) Endorsements

It's 15 days until the August 7 primaries here in the state of Kansas, and early voting begins today. I'm a vote on the day-of person myself (I just like the vibe of going into my designated polling place on election day), so I still have two weeks to change my mind about which Democratic candidates I'm going to support--but given all the thought I've already put into it, the odds of anything happening that could make me rethink things some more is unlikely. So, as a few people have asked me which Democratic candidate for governor I'm supporting, I'm giving a follow-up to my post from months ago here--but you're going have to wade through all my usual pedantic ruminations first. Sorry, that's just the way I blog. (Hint #1: just go to the fifth paragraph if you can't wait. And if you absolutely can't put off the announcement even that long, Hint #2: it's the one from Wichita who has graduated from high school.)

1) I know party primaries are a problem. Primaries emerged onto the scene of American politics more or less a century ago, in conjunction with a large number of other Progressive reforms on the local, state, and national level, with the aim of taking power away from party bosses and the plutocrats who supported their positions and giving it to party members instead. Today, though, thanks to changes in campaign finance laws, communication technologies, and the internal rules of parties themselves, primaries don't do a particularly good job at preventing those candidates with large pockets and/or the explicit support of other wealth donors from quickly dominating the nominating process. And along the way, primaries bring their own pathologies with them: low voter turn-out makes it ease for well-organized extremists to dominate the intra-party debate, and the competition between even narrowly divided candidates can create narratives and animosities that end up driving media dynamics and funding pitches for the remainder of the campaign. So, yeah, primaries often create more problems than they're worth.

2) That said, I have no confidence whatsoever that the participatory genie could ever be put back into the bottle. Even if it were legally, organizationally, and politically possible to get us back to state of affairs where either of our two mass political parties were able to effectively choose, groom, and present candidates to voters (and doing so would, in my judgment, at the very least require the Supreme Court to overturn multiple precedents laid down over the past 40 years), I am highly doubtful that voters of either party would accept such a state of affairs--I strongly suspect I wouldn't, and I say that as someone fully aware of all the above-mentioned problems. And moreover, it's not like resurrecting that level of party control would somehow prevent all the corruptions that primary elections were originally designed to combat from flooding back.

3) So is the problem political parties entirely? Possibly, but I know of no other mechanism whereby a mass liberal democracy can be operated so as to actually respect the freedom of citizens to organize themselves around and in support of distinct causes and candidates except through some kind of party structure. The people who wrote the Constitution didn't really give that possibility much thought, but within a few election cycles the democratic need for parties was blindingly obvious. General plebiscitarian contests simply won't do it, despite being pushed by vaguely (but rarely actually) populist dreamers for decades. This year we have Greg Orman running as an independent candidate for governor, and he's an impressive guy, with a smart grasp of both the fiscal and the electoral realities facing our state. I like Orman, and have a lot of respect for his Lt. Governor pick, John Doll. Ultimately, though, Orman's whole drive remains deeply self-referential, insisting that he represents nothing more or less than independent, practical, business-minded thinking, as opposed to any particular set of beliefs. And human beings, being the communal animals we are, generally both want and need to be part of set.

4) Why is the Democratic party my set? Well, it's not my only set, nor the one I'm most attached to, either politically or in terms of time or money. But yes, here in Kansas in 2018, in the long wake of Governor Brownback's still-mostly-unchallenged transformation of the state Republican party into a vehicle for economic individualism as a religious conviction, the state Democratic party, for all its flaws (and heaven knows it has plenty), is the only place that folks who are committed to promoting egalitarian economic policies and expanding civil rights have to organize themselves electorally, at least practically speaking. So while the idea of switching to the Republican party so as cast a vote for a responsible conservative as opposed to an actually dangerous one had some appeal for my wife and I, ultimately we decided to stick with this particular set to see what we could do to help their candidates across the finish line in November.

5) Which brings the rubber to the road: what mix of strategy, symbolism, and substance is leading me to endorse one candidate over another? Well, like every other voter in every other primary contest everywhere in the United States, I'm thinking about what ideas best represent my wishes, thinking about what different candidates reflect in terms of different factions within the party, and thinking about what are the relative odds for any candidate to win in the general election. For Democrats (and liberals, progressives, socialists, etc., whatever your preferred handle) in Kansas, given that we're significantly outnumbered, yet have a genuine window of opportunity in 2018 thanks to the Brownback stink, that last component--a kind of second- or third-level chess, trying to figure out who has the greatest likelihood of winning one contest while still keeping themselves in contention for the next--is even more important, even though it becomes more and more of a crapshoot the further you attempt to extend your analysis forward. In any case, here's why I've come down on Brewer's side.

(Wait!, you're saying; there will be more on your ballot than just the Democratic primary for governor! True, but I'm not going to weigh in on the Laura Lombard-James Thompson race to be the Democratic candidate to run against Republican Ron Estes to be the congressional representative for Kansas's 4th district. I like and respect both of those candidates, do not see any major political differences between them, have known and supported one of them for a long time, and plan on continuing to do so. For better or worse, I don't see a need for a lot of thinking there.)

5a) First, I like all three of serious candidates (yes, I'm dismissing without comment both Jack Bergeson, the Wichita high school student, and Arden Andersen, the cool but slightly whakadoodle doctor from Olathe). Senator Laura Kelly is a smart, savvy, experienced poll, who almost certainly is the best positioned of these three--in terms of finances and in terms of party support--to run a traditional state-wide campaign for Governor. The criticisms which have been lobbed against her regarding a procedural vote of hers on the proposed expansion of Medicaid, or regarding connections between her campaign and interest groups opposed to expanding Medicaid, are, in my view, cheap and silly, reflecting no real knowledge of how legislation needs to be positioned for votes in the long term. And her Lt. Governor pick, the flat-out brilliant Lynn Rogers, is one of my favorite people in all of Kansas politics. I also like Joshua Svaty, in part because he and his Lt. Governor pick, Katrina Lewison, absolutely do represent something desperately needed in the state party: generational change. I like Svaty's practical yet unconventionally progressive opinions about the future of agriculture, and I like the fact that he was the only gubernatorial candidate sufficiently unconcerned about the "progressive" label as to make the time to get out to the Bernie Sanders rally here in Wichita. Most of all, as a religious believer with more than a couple conservative streaks in me, I like the fact that he hasn't tried to deny or repent of past votes he's taken but instead allows himself to argued about right in the middle of messy debates over abortion, faith, and much more.

5b) Still, for me, for now, it's former Wichita mayor Carl Brewer, who is almost certainly the least well-funded and the least organized of the big three. Though my contacts with Carl have been minimal over the years, I've long admired him, and have supported him since he first declared his candidacy. Why, especially given that the political ends I value most--economic egalitarianism and democracy--he's quite possibly the least progressive of the three? It comes down to substance, symbolism, structure, and--yes--strategy.

5c) On the level of substance, Carl's stated goals as governor aren't significantly different from any of the other two. He will govern with Democratic party priorities in mind, and for all their limitations (and again, I can think of many!) those priorities--pushing Medicaid expansion, loosening the penalties on marijuana usage, reforming Kansas's criminal justice and child welfare services, and most importantly, working to overturn the legacy of Brownback's tax experiment--are ones I support. On the level of symbolism, it's obvious: there have only ever been two African-Americans elected governor anywhere in the U.S., and Kansas, so far as I have been able to discover, has never had an African-American serve in any statewide elected position. Carl almost never makes reference to racial symbolism in his campaign (though it comes out occasionally; in a recent debate, after another candidate talked about his grandfather's impressive political history, Carl started his reply with the quiet snark "of course, my grandfather wasn't able to hold political office..."), but obviously, to even be able to vote for a black candidate for governor is, to my mind, a huge step forward. On the level of structure, I plead my own personal affections and interest. While there is a lot of movement between the state and the national level in American politics, there isn't nearly enough movement between the local level and the state level--and in an era when the continued urban concentration of people are making the governance of cities more and more crucial to whatever the next steps in American democracy will be, bringing the sort of real, tactile knowledge which being a longtime city leader teaches into the realm of state governance is, I think, of major theoretical and even constitutional importance. (Besides, it's been a century since a committed Wichitan, someone from the Kansas's largest city, became governor; it's time for that to happen again.) And as for strategy? Frankly, Carl doesn't have the baggage that the other candidates have, which may mean he could hold together the state Democratic coalition better than the other candidates could. Am I certain of that? Not at all. Does Carl seem able to inspire new, progressive voters? The jury is out. Will racism doom his candidacy in the general election anyway? Quite possibly. All these, and others, are legitimate strategic concerns that Democrats have to ask themselves. But to my mind, above and beyond all the aforementioned rationales, in a year when Orman will be looking to poach Democratic voters, a thoughtful, mild-mannered, quiet candidate, one who doesn't offend any particular group of Democrats and thus could be acceptable to just about all of them, is nothing to sneeze at.

6) Let me make it clear; I will strongly support, both with time and money as well as my vote, whomever wins this primary (unless something truly nuts happens, and the high school student wins, and the Republicans choose a moderate like Jim Barnett as their candidate--then all bets are off). But primaries are what we have, and so primary calculations we must make. These are mine.