A hugely consequential vote that will decide the fate of abortion rights in Kansas will happen next month, during the sleepy dog days of summer on a sleepy primary ballot.
Primary turnout for the last twelve years in the state has hovered at mid- or low-20 percent, cresting at 35 percent in 2020, according to the Secretary of State’s office. For comparison, general election turnout hangs around 50 percent on off years, building to as high as 70 percent for presidential elections.
Primaries attract fewer people than general elections, but also different types of people.
“In primaries, all of your low-turnout groups drop out: young people, minorities, moderates. Kansas is like the country overall in that the more moderate you are or if you’re an independent, you tend not to vote in primaries,” Patrick Miller, an associate political science professor at the University of Kansas, told TPM. “Putting this on the August ballot not only skews the vote more towards Republicans, but more toward conservative Republicans, the most committed conservatives.”
The timing is no accident.
In 2019, the Kansas Supreme Court found that the state constitution protects the right to an abortion. Anti-abortion groups wasted little time in strategizing how to nullify that decision.
They settled on a ballot vote to amend the constitution with language making it clear that the constitution protects no such right, and asserting that the state does not require government funding of abortion services. It guarantees the very conservative legislature’s right to pass abortion laws “including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.”
The first attempt in 2020 to get the amendment on the August primary ballot, rather than the November general one where two other amendments are being voted on this year, failed due to a coalition of opposition from state Democrats and moderate Republicans.
“They think they have to pick and choose an election cycle that favors them the most,” former state Rep. Don Hineman (R), a moderate Republican who retired soon after voting against the measure, said at the time of his GOP peers.
But then the 2020 election happened. The state legislature got even more conservative, as some of those moderates were swept out. The next attempt to schedule the August vote — and to label the summer vote a “special election” to sidestep a constitutional provision requiring amendment votes to come when voters are electing, not nominating, representatives — was successful.
“Everyone in the building knew,” state Rep. Brandon Woodard (D), who sat on the committee that debated the question through the failed and successful scheduling votes, told TPM. “The Planned Parenthood and Kansans for Life polling was basically the same: this vote fails in November, and is very close in August.”
Now, a new factor has entered the mix. The Supreme Court overturned the constitutional right to an abortion at the end of June, about two months after a nearly identical draft of the opinion leaked to the press. In Kansas, the fight over the state constitution has taken on new importance.
The sleepy primary is suddenly being held in a time where abortion is headlining the national conversation. The fresh wave of attention has given opponents of the amendment, many of whom admitted to TPM that they were very worried about the vote before the leak and final decision came out, a dose of renewed hope.
“This push for getting the vote during a lower-turnout election seems to be potentially backfiring with the proximity to the decision coming out,” Woodard said. “It’s firing people up in a way I simply have not seen before.”
Officials in Johnson County, Kansas’ most populous, are reporting a spike in calls since the Supreme Court decision about mail ballots and new voter registration, and told local reporters they expect the number of registered voters to grow.
In Sedgwick County, the state’s second-most populous which includes Wichita, the election commissioner said that voter registrations have jumped since the decision, and that her office is preparing for turnout as high as 65 percent.
There are other signs of increased voter interest as well.
“People are bombarding us with voter registration events, saying ‘can you be there, can you be here?’” Martha Pint, co-president of Kansas’ League of Women Voters, told TPM. “Our membership is up too.”
“We’ve seen a significant surge in volunteer engagement and people who want to help both after the leak, and, even more significantly, after the decision,” Ashley All, spokesperson for Kansans for Constitutional Freedom, the coalition opposing the amendment, said.
“The Johnson County Democrats office just went through 2,500 ‘vote no’ yard signs in 12 hours,” Woodard added. “They just ordered another 5,000.”
Enthusiasm can’t always compensate for deliberate attempts to manipulate the vote.
One of the biggest challenges for opponents to the amendment, besides making people aware that the vote is happening at all, is to change voter behavior.
There are more unaffiliated voters in Kansas than there are registered Democrats, and those people usually don’t have any reason to vote during the partisan primaries.
“On applications for advanced mail-in ballots, online when it initially generated the form, it only offered a choice of Democrat or Republican — that leaves unaffiliated voters to believe they don’t have a choice here,” Pint said. She added that some counties changed the form after the issue was brought to their attention.
The text of the amendment itself has been panned as purposefully convoluted, including mentions of popular rape, incest and preservation of the woman’s life exemptions while actually empowering the legislature to pass abortion bans without those carveouts.
Then there’s the historical asymmetry in enthusiasm. The anti-abortion contingent has been energized for years, building off of the 2019 state Supreme Court decision.
Some have criticized the coalition fighting the amendment, in contrast, as slow to get organized while the state was blanketed with the purple and white signs of supporters of the “Value Them Both” amendment.
Still, those who oppose the amendment think they have a fighting chance if voters turn out. Most Kansans, much like most Americans, support access to abortion, according to a recent poll.
Less of an unknown is what the legislature will do immediately if the amendment is successful.
“We absolutely know — if this passes, the first bill to be introduced will be an outright ban,” Woodard said.