In This Episode
Even though it’s summer, there’s a lot to catch up on in the legal world! Leah and Melissa talk with Grace Panetta, who co-wrote a piece for Business Insider on the GOP’s plans for state constitutional conventions. And then they turn toward Kansas, where voters dramatically turned out to declare that reproductive freedom is an essential part of the state constitution. They’re joined by several of the activists behind the victory.
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SHOW INTRO: Mr. Chief Justice, and may it please the court. It’s an old joke, but when I argued and argued against two beautiful ladies like this, they’re going to have the last word. She spoke elegantly with unmistakable clarity, she said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our neck.
Melissa Murray Welcome back. I’m Melissa Murray.
Leah Litman And I’m Leah Litman.
Melissa Murray And this is a very special summer episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.
Leah Litman So as you know, in his majority opinion in Dobbs versus Jackson Women’s Health Organization, our favorite fan boy, Justice Samuel Alito, skincare maven, went on an.
Melissa Murray And beard afficianado.
Leah Litman And beard aficionado. We will cover that on a subsequent episode, though, went on and on about returning the issue of abortion to the, quote, people for Democratic deliberation. Maybe let’s call him Democrat Alito or Democrat Alito, DemocrAlito.
Melissa Murray So I like DemocrAlito, too.
Leah Litman Okay. Justice Alito may have been focused on returning the issue of abortion to the states, but he is not the only, let’s say, Republican leaning official who is interested in a little Democratic deliberation or non-democratic deliberation we’ll say.
Melissa Murray In a recent article coauthored with Brant Griffiths, Business Insider’s Grace Panetta laid out an emerging conservative plan to rewrite the Constitution using, wait for it, state legislatures. What’s that you say? More conservative interest in state legislatures? Yes. We’re pretty sure this has something to do with the independent state legislature theory slash fan. And to help us figure out exactly what’s going on, we decided to call Grace up and see if she would come talk to us on the podcast. So here she is. Welcome. Grace Panetta, we’re so glad to have you today.
Grace Panetta I’m so excited to be here. Melissa, thank you so much for having me on.
Leah Litman Reading your article, Grace gave me a feel for what I hear at least listeners experience while listening to this podcast. A combination of this can’t really happen. This won’t happen. And then will it happen?
Grace Panetta Oh Shit, this is happening.
Leah Litman exactly. Like that that was the general reaction. Okay, but before.
Melissa Murray A little taste of our own medicine.
Leah Litman Exactly.
Grace Panetta Say this felt like reading a horror story like this was harrowing.
Leah Litman Yes. Okay, so let’s dive in. We want to open with the question of how you learned about this campaign to hold a constitutional convention. Like where did you begin hearing this rhetoric and then how did you investigate it?
Grace Panetta So this story idea came from one of my editors, Dave Leventhal, who’s super smart. And he pitched this idea to Brent and me and said, hey, you guys should dig into this, do a little digging, and then, you know, maybe turn around and explain it or so in a week. And at first, I have to admit, I was a little skeptical. I had never heard of this before, and I consider myself someone decently plugged in to politics. So he gave us that assignment. And within 24 hours I just made a few calls and realized, okay, this goes much, much deeper than I thought. And not only that, but this is an extremely active movement. This is not just a few people sitting in a conference room discussing things. This is ongoing.
Melissa Murray Let’s do a little level setting for our listeners. So Article V of the U.S. Constitution lays out the means by which the Constitution can be amended. And there are two methods there. And the method that has been used historically to amend the Constitution is one that really requires the intervention of Congress. So Congress, with a two thirds majority, proposes an amendment to the Constitution, and from there it turns to the states to ratify it, and you need three fourths of the states to ratify it. But that’s not the only way that Article V prescribes for amending the Constitution. There is an alternative that bypasses Congress entirely, and it basically relies on two thirds of the states calling a constitutional convention where amendments can be debated and then subsequently ratified by three fourths of the states. So this is a mechanism that completely takes this outside of Washington and locates all of the action in state legislatures. This method has never been used before. Why is it gaining traction now?
Grace Panetta Yeah, you’re right. All of the amendments we have now are passed by Congress, and that hasn’t happened in 30 years. No American under 30 has seen the Constitution amended at all in their lifetimes. And this other part of Article V, this convention is something that most people, including myself, before reporting this, didn’t really know about. And the reason it’s sort of gaining traction now is because it’s sort of a very organized segment of conservatives are now pushing this with some really powerful backers and are making a lot of progress in the states. And it’s kind of what we saw with the Tea Party, right, this strategy of enacting the policy agenda in state legislatures and sort of taking that power back from Washington. And I also think things like that being a Democratic trifecta in Washington, the Dobbs decision and the increased power of the Supreme Court has made this movement even more emboldened.
Melissa Murray So is this a movement that is deeply, deeply skeptical of Washington, or is it a movement that is sort of ancillary, fueled by the fact that there’s so much polarization in Congress that Congress really can’t do anything?
Grace Panetta I think it’s both. I think it’s you know, a lot of people have come to the conclusion that Congress is not going to be passing any new constitutional amendments any time soon. And, you know, this is part of the same long term conservative project of taking more power away from Washington, away from the federal government, and putting it back in the hands of the states and not something that’s, you know, transcended and been constant in Democratic administrations and Republican ones.
Leah Litman I want to suggest another reason why this is happening now, and it is the power and interest of state legislatures like it is kind of natural or parties have incentives to try to push for more political power to be exercised by whatever level of government or whatever arm of government they happen to have the advantage in. And the reality is right now, for several different reasons, many of which related to the Supreme Court, Republicans have an advantage in state legislatures, like state legislatures are gerrymandered, and the gerrymandering is skewed toward the Republican Party that allows Republicans to remain in power in state legislatures, even when they don’t represent a majority of voters. You know, this upcoming term, the Supreme Court is hearing Voting Rights Act cases that could allow state legislatures to draw districts in ways that dilute the voting power of racial minorities and voters of color. You add to that the independent state legislature theory that would basically free state legislatures from being bound by state constitutions in ways that might limit their ability to set the rules regarding federal elections. And so I think that also seems to me like part of the story, this desire to use a lever of political power that is open to them now and that they have an advantage in.
Grace Panetta Yeah, absolutely. I think that’s exactly correct. And we see we have Rick Santorum on tape in our reporting explaining behind closed doors to state lawmakers that Republicans in Republican controlled state legislatures would dominate a convention because of, you know, the way that they dominate state legislatures through gerrymandering. And he said we have an opportunity as a result of that to have a supermajority, even though we may not be in an absolute majority when it comes to people who agree with us. So it’s exactly building on these decades long effort to lock down state legislatures, including through partizan gerrymandering.
Leah Litman So this does seem to be an interest of bypassing Washington, D.C. and its influence over American politics in favor of this thing that they actually control, state legislatures. And you use the term conservative nation in the article to describe the vision of America that is held by those who are pushing for a constitutional convention. Like, what are the elements of this conservative nation?
Grace Panetta So the main planks of the Convention of States movement, which is the one that has the most momentum, it should be noted there are multiple efforts in various groups calling for a convention to push forth their own policy goals, including a couple on the left. But this convention of states one that has the most momentum and the most states it’s gaining currently, they want to rein in the power and jurisdiction of the federal government more broadly, which could encompass basically anything, they want to rein in the fiscal power of the federal government, to example, you know, require the federal government to balance their budgets, rein in the government’s taxation power. And they also want to impose term limits on federal officials. So members of Congress, federal judges, they want to take aim at the federal bureaucracy. Those are convention of states, main goals.
Melissa Murray So, Grace, can I follow on to that by asking who are the players in this effort? Your reporting named some people who Americans, I think, are likely to be very familiar with. John Eastman, a former law professor and dean of a law school, not really holding up the brand for us law professors these days, but he’s someone who is very much behind this movement. Another person who has been mentioned here is someone that we’ve talked about on this podcast before, former Supreme Court litigant and current senator from Cancun, Ted Cruz. Are there other people who would stand to benefit who are in this movement? Are there certain interests that are likely to benefit from this interest? And are there other major conservative leaders who are supporting this effort?
Grace Panetta Yeah, I think what’s really important to understand about this movement and why it shouldn’t be dismissed as just fringe or unrealistic is because convention of states in particular has a lot of mainstream Republican and conservative figures behind it. So obviously, Rick Santorum is one of their senior advisors. If you go to the website, you can see all the Republican and major conservative politicians who have endorsed it. They include Florida Governor Ron DeSantis, Ben SHAPIRO, Mark Levin, Sean HANNITY. You know, these are not fringe figures. These are people who have lent their name and their endorsement to this movement. And then also, it comes in the the, you know, conservative power structure is backing a convention of states and its other related nonprofits. They include, you know, Donors Trust, which is a network connected to the Kochs. The Mercer Family Foundation are groups connected to Leonard Leo.
Leah Litman Wait. Leonard Leo?
Grace Panetta And then there’s the video.
Melissa Murray I was about to say this is sounding like a crossover with Senator Whitehouse about the dark money interests, you know, behind the Supreme Court, so.
Melissa Murray Wait, so how long is this man’s laundry list of things to do? He’s got to get rid of abortion. Independent state legislature theory.
Leah Litman Constitutional convention.
Melissa Murray Constitutional convention. Like, when does he sleep?
Grace Panetta Yeah, and that’s the thing is big. You know, these groups like Convention of States and Citizens for Self-Governance, which is a related nonprofit run by the same guy, Mark Meckler, is a former Tea Party activist. They’re a 501C4 So they don’t have to disclose their donors. But watchdog groups like the Center for Media and Democracy have, you know, obtained and pulled the IRS filings and that show that a lot of other, you know, dark money groups and other funds connected to these big donors have contributed to these groups. But a lot of it is still opaque because they don’t have to disclose their donors.
Leah Litman And thanks to the Supreme Court, they might not even have to report to their donors to some state and local governments.
Melissa Murray Oh, look at you.
Leah Litman Given the Supreme Court’s decison in AFB versus Bonta, which struck down California’s reporting requirement. Whether that, you know, allows a federal reporting requirement to stand still remains to be seen, but
Melissa Murray It’s almost like it’s a concerted plan, Leah.
Leah Litman You know, it’s almost. Almost almost. So speaking of the different organizations that are behind this effort, one of the organizations mentioned in your report is ALEC. ALEC has been an actor that has been involved in efforts to pass legislation like Stand Your Ground laws as well as voter ID laws. And there have been reports along the lines that you are referring to that ALEC is pretty heavily influenced and contributed to by large corporations. Can you explain a bit more for our listeners and for us about what ALEC is, who’s behind the organization, and how do conservative legislative and corporate interests interact with ALEC?
Grace Panetta Yeah, so ALEC, essentially its two main goals and objectives are to get its model legislation passed in state legislatures. So, you know, state lawmakers, a lot of the time, they’re stretched thin. They have lots of priorities. In many cases, their work is part time. And so ALEC tries to make things easier by writing model legislation that can be tailored to any state and pass through state houses. And they’ve been very successful on that front. And then their other main contribution is putting lawmakers face to face with corporate America. So they’ve also played a role in the convention movement, and none of it is particularly secret. None of it is very much behind the scenes. It’s just not a facet of their work that is sort of less discussed and less known. So they’ve brought together various facets of the convention movement together at their summits, like last Winter’s ALEC Policy Summit featured a workshop on the convention movement. They’ve also have a model legislation for a convention to call for a balanced budget amendment. And they have an Article V convention handbook for lawmakers written by conservative legal scholar Rob Nadelson. So they’re using their resources to push this project forward significantly.
Melissa Murray So ALEC stands for, I had to go and look this up, because first I was like ALEC, like Alex P. Keaton, and I was like, That’s a little too on the nose. But ALEC actually stands for the American Legislative Exchange Council, and it bills itself as America’s largest nonpartisan organization of state legislators dedicated to the principles of limited government, free markets and federalism. And the thing that’s so interesting here is that it is really following a playbook that was set in motion by the anti-abortion movement. So Americans United for Life, which is a major anti-abortion group, did the same kind of thing. They would write model abortion laws and then parcel them out to state legislatures and get them passed at the state level. And then suddenly all of these states had almost identical kinds of abortion restrictions. And ALEC, it seems, is doing that as well, not just in the area of state constitutional conventions, but in a wide array of areas that affect different policy areas. That’s absolutely right. And that’s also a really interesting comparison with the anti-abortion movement and how it got so much of his policy agenda lined up and ready to go in state legislatures. And in fact, Rick Santorum, when he was speaking to lawmakers at last winter’s ALEC Summit and the audio we obtained, he made the direct comparison this. He was speaking the day after the Supreme Court heard the arguments and DOBBS in December. And he said, you know, we’re probably going to see the end of Roe v Wade. And it was because of 25 years of blocking and tackling by the pro-life movement. He said Every institution was against us, but we kept fighting. Why? Because we knew it was important. So he made that comparison himself, saying, look, we’re so close to getting Roe v Wade overturned and we can do this convention thing, too.
Melissa Murray ALEC is definitely a major player in all of this,Grace But this is a podcast about the Supreme Court, so we would really be remiss if we didn’t highlight the Supreme Court’s own role in cultivating the conditions that have fueled this movement in a lot of ways. So can you speak specifically to the ways in which the court’s jurisprudence, especially over the last decade, have really laid a foundation for this burgeoning movement?
Grace Panetta I think one major way that the Supreme Court set the stage for this was in Citizens United, unleashing, you know, unfettered corporate super PAC spending in American politics, really, really emboldened the same kind of corporate interests, conservative power players that are now behind this movement and more recently, thinking about the past term. It was just really stunning how just in a few weeks, as you all covered in such great detail, the Supreme Court just checked off so many items on conservatives long term wish lists, and it showed for conservatives that the long game works. They played the long game in locking up majorities in state legislatures. They did that and securing a super majority on the Supreme Court that overturned Roe v Wade and, you know, lay down another of several other consequential decisions. And so what it showed for conservatives is, you know, we don’t have to stop there. We can go further and change the Constitution itself.
Leah Litman So one of the ways the Supreme Court has kind of created the conditions for this constitutional convention possibly to flourish, is enabling funding sources, you know, anonymous funding sources, large corporate funding sources. And part of your reporting is about where this campaign to rewrite the Constitution is getting its funding. So who is pouring money into Citizens for Self-Governance and the convention of states, which, as you describe, is kind of like the big organization behind this?
Grace Panetta Yeah. So like I mentioned, you know, these are 501c4 groups that are technically registered as nonprofits. So they don’t need to disclose their donors in a lot of cases. But we know based on tax filings obtained by the watchdog group, the Center for Media and Democracy, that some of the organizations that have given money behind these groups are the Mercer Family Fund, Donors Trust, which is sort of a network connected to the Kock’s groups that are linked to Leonard Leo. The group also obtained a 2020 internal audit of Convention of States that showed that they’re really relying on big money. In 2019, a $1.3 million donation made in Bitcoin made up 16% of their budget basically.
Leah Litman I don’t know why I love that so much. A bitcoin Donation.
Grace Panetta I want to know so badly who that was. I’m so curious. Like who like loves crypto this much? And then in 2022, donations totaling 2.5 million accounted for over a third of their budget. So there’s a lot of big money here connected to a lot of big, powerful corporate interests, but much of it is very opaque and hard to decipher.
Melissa Murray What are the goals, Grace, of this dark, money funded constitutional rewrite?
Grace Panetta The.
Leah Litman What are they paying for?
Melissa Murray I mean, they say that they’re only coming for amendments that are focused on limiting the power of the federal government. But that seems like a pretty broad remit into which you might possibly throw almost anything. So how are they framing their interests here and what potentially could be rewritten if they are successful?
Grace Panetta One of the fascinating things we discovered in our reporting is the gulf between what convention proponents say in public and what they say in private behind closed doors pitching lawmakers. So convention proponents argue that a convention would be strictly limited to a certain set of topics. There are many guardrails and incentives to keep it from, quote unquote, running away or going off the rails. And proponents also point to the high bar to ratifying amendments. Right. You know, a convention can only propose things. Three fourths of the states would need to ratify it. But behind closed doors, we see convention proponents pitching it as something much, much more expansive. But we got audio of Mark Meckler, the head of Convention of States, describing a convention as a way for ordinary citizens to get their hands around the throat of the federal government and put it back in the constitutional box. And he said only his movement.
Leah Litman They want to choke out the federal government? Just, just to be clear.
Grace Panetta Yes. Yes. And then, you know, Rick Santorum, the opening quote in our story, described it as a grenade. And he said, you pull the pin, you got a live piece of ammo in your hands.
Melissa Murray That seem unsafe. Right.
Leah Litman And the federal government won’t be there to regulate it. So just ammo all around.
Grace Panetta Yeah, just an unregulated grenade. So, yeah. And that’s how they’re pitching it to lawmakers is this broad, you know, way of really taking aim at the federal government. Mark Meckler said, you know, we can’t just do the balanced budget amendment. We can’t just do term limits. It has to be the full package.
Melissa Murray It seems like I get pulling the pin on the federal government. That seems definitely problematic. But there is a world in which going to the Constitution and rewriting the parts of it that seem anachronistic or seem out of date could actually be something that progressives are interested in. So why are conservatives occupying the field here? Are there any progressives interested in taking back the Constitution, rewriting parts of it, whether it’s through the Congressional Vehicle for amendment or the state legislature vehicle?
Grace Panetta Yes, actually, the one main player on the progressive side advocating for a convention is Wolfpack, which is a group founded by the founder of the Young Turks. And their sole objective is to enact a convention in order to overturn Citizens United. Like I mentioned, Citizens United, that decision was a major catalyst for this movement in many different ways, but they have struggled to gain momentum and actually, interestingly, a way of how differently conservatives and liberals view this. Two of the states that passed Wolf pacts call for a convention later rescinded because of concerns that a convention could be taken over by conservative interests. And that same fear is also why this movement has not gotten as much traction as you would have thought on the Republican side. This is not a conservative versus liberal issue. In many GOP controlled states, super conservative lawmakers, right wing groups like the John Birch Society oppose the convention because they fear it could unleash a Pandora’s box of changes and would have no guardrails.
Melissa Murray So the whole idea of a runaway state legislature and a runaway convention.
Grace Panetta Yes, that’s what some conservatives are afraid of.
Leah Litman So as we’ve been saying, you know, this mechanism for a constitutional convention runs through state legislatures. And that means possibly, you know, the chances of this convention actually taking place could be dependent on the outcomes of the 2022 midterms and future elections that will determine control of state legislatures. Is this an issue that the public needs to be aware of on the upcoming ballot in November and possibly future ones, too?
Grace Panetta Yeah, I would argue this is something we should be paying attention to, not because a convention is imminent. You know, my intention writing this was never to scare or alarm people. We are still a long way off from a convention.
Leah Litman It’s just to sound, sound the alarm.
Melissa Murray The alarm. Like a Cassandra
Grace Panetta Yes, but the Conservatives are willing to play the long game. And that’s why we should care. That’s why we should pay attention. They’ve done it successfully with taking over control of state legislatures.
Melissa Murray And by long game, you mean three years.
Grace Panetta Yeah. Yeah, they’ve successfully done that, taking over control of state legislatures, and they’ve done that with installing a conservative supermajority on the Supreme Court. And they’re looking to do it again. And that’s why we should be paying attention. There are many opportunities coming up for Republicans to flip control of state legislative chambers, including in Virginia, that can possibly secure a trifecta next year. There are ones on the ballot this year and, you know, just about expanding their majorities even more. And that could raise the chances of more states passing this call for a convention.
Melissa Murray I suggest that this is like maybe three years in the offing. Am I off? Is this really imminent like and what does imminent mean for this purpose? Like, how likely is this to happen? What is the real threat? Which states do you think are going to sign on to this wild campaign? They need 34 states to begin working things out. How soon could they get there? I mean, I was just spitballing when I said three years. But am I right?
Grace Panetta When a conservative legal scholar I interviewed, who has done a lot of writing on Article V, thinks 50, 50 chance in five years.
Melissa Murray Oh my god.
Grace Panetta And again, a lot of it. Yeah. A lot of it, though, is going to depend on Republicans ability to flip control of state legislatures and to change the composition of the ones they already control.
Melissa Murray Wait. So the reason why on voter suppression and gerrymandering.
Leah Litman It’s so terrifying, because this is happening at a time where the court has allowed state legislatures to unmoor themselves from the public and from voters. And so these entities have this huge, awesome wrecking ball of power at a time when they are potentially increasingly disconnected from voters.
Grace Panetta Yeah.
Leah Litman And you’re saying 5 years.
Grace Panetta Maybe.
Melissa Murray Grace, what can we do? What can we do to stop it? Is there anything we can do?
Grace Panetta Well, the of the main, one of the people I interviewed is that Common Cause, her name is Vickie Harrison. And basically her big part of her entire job there is lobby against convention calls in state legislatures. And she does that. You know, she has to appeal to both Democrats and Republican lawmakers and lobbying against a convention. And one of the things that Common Cause has been doing in recent years is convincing legislatures to rescind their previous calls for a convention. They’ve successfully done that in Colorado, in New Jersey and in Illinois. And basically, she told me her strategy is just to get all the convention calls off the books, off the table, to reduce the chances of it happening. So that’s sort of the counter strategy being pushed by Common Cause and other similarly situated government groups.
Melissa Murray So what is Vicky doing to activate the public around this issue?
Grace Panetta Well, Common Cause and addition to lobbying, they put out a lot of reports and analysis on this, which I previously was not super aware of until I started researching it. But the reality is this is a hard issue to capture the public’s attention over. It’s something that can seem really sort of far off and fringe or not concrete.
Melissa Murray Well, it is far off and fringe, but it’s actually happening. And just because something is far off and fringe doesn’t mean that it’s, you know, beyond the pale like we’ve seen in literally the last four years, things that were considered off the wall suddenly become on the wall in a very real way. So we will do our part.
Leah Litman It’s also like one of those things where, you know, in the abstract it might sound fine, right? A constitutional convention, right, to rewrite some of the problems and deficiencies and anachronisms you were suggesting in our Constitution. And then it turns out, well, by constitutional convention, they mean blow up the federal government and allow everyone to walk around with unregulated grenades. And, you know, in the same way. That like it’s.
Melissa Murray Like let’s party like it’s 1777. Again
Leah Litman Right. You know, in this way, people are like, oh, we’re pro liberty. And it turns out that liberty means forcing ten year olds to give birth. And, like, that’s that’s not actually, like, what liberty means. And so, you know, it seems like there is there’s a disconnect between the general principle and some of the specific vision.
Grace Panetta Yeah, exactly. And I interviewed one law professor at Georgetown, David Super, and he made the point that, you know, these the nominal purposes of this movement where they say it’s going to be restrained and tailored to certain items, it’s not really connected to what they’re pushing. Again, like not connected to what they’re saying behind closed doors. And he made the point, too, that, you know, there are you could do basically anything that could be, you know, construed as reigning in the power of jurisdiction of the federal government, like it could repeal the equal protection clause of the Fourth Amendment. You could ban abortion by saying you’re preventing the abortions of future wage earners. And that’s, you know, within the jurisdiction of this movement. So when you know, all the arguments you hear about, oh, the convention is just going to be limited. It’s not going to, you know, do this or that. You know, the proponents of this movement have set it up so that you can stay within the bounds of the convention call and still do potentially some very extreme things.
Leah Litman Truly eye opening and chilling stuff. Grace Panetta is a senior politics reporter at Business Insider, and her reporting focuses on election administration and voting rights. And you can check out her work at Business Insider. We’re so grateful to Grace and her coauthor, Brant Griffiths and to Business Insider for alerting us to this burgeoning effort. And many thanks, Grace, for taking the time to talk with us today.
Grace Panetta Thank you so much for having me on. I really appreciate it.
Speaker 2 <A.D.>
Melissa Murray All right, listeners. So now we are going to shift gears a little bit. We’re still going to be talking about Democratic deliberation and how it’s playing out in a world in which state legislatures run the risk of being increasingly disconnected from the people, whether that’s because of gerrymandering or vote dilution or voter suppression or all of these things or other things as well. But because it’s summer, we wanted to shift to a more uncharacteristically positive note in this segment. We were going to touch on so many of the issues that are important to us and that have been a part of this podcast from the beginning. So reproductive rights, democracy and democratic deliberation. But with a little more positivity, which is something you are not used to all the time on this podcast. So Leah, do you want to bring us in?
Leah Litman We’re no longer in Sad Girl Summer. It is Free Girl Summer. So those of you following the news are aware that in the last few weeks there have been some major developments on the front that Melissa listed. Kansas rejected a ballot initiative that would have stripped away the state’s constitutional protections for reproductive rights. This preserves the state’s constitutional protections that allow people to decide how to manage their pregnancy. Indiana adopted a near-total abortion ban. This happened in a special legislative session following high profile reports about an Indiana doctor who provided abortion care to a ten year old rape victim from Ohio who had to travel out of state given Ohio’s restrictive abortion laws. And here in Michigan, there have been a series of changing legal developments as litigation challenging the state’s pro-criminal criminal abortion ban continues. That criminal abortion ban is not in effect due to different court orders, at least as the time of recording. And there is a ballot initiative upcoming in November to add explicit constitutional protection for reproductive rights to the state’s constitution. Okay. So there is obviously a lot happening with respect to reproductive rights and democracy, and we wanted to discuss that with the people on the ground who can share some of their insights on the incredible victory in Kansas to preserve reproductive freedom and a post jobs post Roe world. So we are delighted to be joined in this segment by Sollie Flora. Sollie is the current mayor of Mission, Kansas, a first year suburb of Kansas City. She has served in elected office since January 2018, first for four years as a city council member and now as mayor. Sollie is also a practicing attorney and classmate of mine from law school.
Melissa Murray Go Blue.
Leah Litman And works as in, Go Blue, and works as in-house counsel for an international corporation. She started her legal career as a law clerk at the Kansas Supreme Court from 2010 to 2012. States Supreme Courts for the win. We are also delighted to be joined by Rachel Sweet, campaign manager for Kansans for Constitutional Freedom, the bipartisan coalition that blocked the proposed constitutional amendment. And we have with us Helena Buchman, field director for Kansans for Constitutional Freedom. Welcome to the show, you all.
Rachel Sweet Thanks for having us.
Helena Buchman Thank you.
Sollie Flora Thank you for having us.
Melissa Murray There is a lot of ground to cover and you all are literally the best people to talk to about these questions. So maybe we can start with an introduction about how all of this and everything that happened in Kansas relates to or follows from. So when the Supreme Court overruled Roe versus Wade in the Dobbs opinion, Justice Alito had this to say. Our decision returns the issue of abortion to those legislative bodies. And it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying, legislators, voting and running for office. Women are not without electoral or political power. Exactly, Sam. Justice Alito kind of lay down the gantlet. Ladies, if you care about this issue, take your hysterical behinds to the polls. And in Kansas, that’s kind of what happened. Kansas had had a pretty interesting run on questions of reproductive freedom. So the state of Kansas had recognized before. Dobbs that the state constitution protects the ability to decide whether to carry a pregnancy to term. So could you or one of you tell us like what is the source of the Kansas protections for the constitutional right to reproductive freedom?
Rachel Sweet The Kansas Supreme Court decided that the source of the protections is Section one of the Kansas Constitution’s Bill of Rights, and that states that all men are possessed of equal and an inalienable material rights among which are life, liberty and the pursuit of happiness. And notably, the court did not found their decision in substantive due process or a right to privacy. They instead said that this was a right to personal autonomy. That was a fundamental and natural right.
Leah Litman Yeah. So just to highlight how different the tenor and approach of this Kansas opinion by the Kansas Supreme Court was from the opinion in Dobbs, there’s this passage that says at the core of the natural rights of liberty and the pursuit of happiness is the right of personal autonomy, which includes the ability to control one’s body, to assert bodily integrity, and to exercise self-determination. This enables decision making about issues that affects one’s physical health, family formation and family life.
Melissa Murray Two related questions about the timeline. In Kansas, the state had these constitutional protections in place before jobs before the court overruled Roe. So first question when did the effort to repeal the state constitutional protections for abortion begin? And when did efforts to protect the right to abortion on the state level get started? So can you tell us a little bit about the timeline just before Dobbs and after it.
Rachel Sweet When this Kansas Supreme Court issued its decision in Cody and Nasr v Schmitt in April of 2019, we immediately saw the anti-abortion movement start mobilizing and organizing around this issue. Their goal was always to do a constitutional amendment, put it to the voters, and hopefully over essentially overturn this decision and pass a constitutional change that would make clear there is no constitutional right to abortion in Kansas. They also included language about there is no requirement for government funding of abortion, something that we currently don’t have. So they were very quick to to organize in 2020. And when our state legislature convened, they tried to pass this and put it on the August primary ballot in 2020, didn’t have the votes. There was a really great coalition of moderate Republicans and Democrats that came together and said, Nope, we’re not doing this. We are going to keep this off the ballot. And then after the 2020 elections, unfortunately, the makeup of the legislature changed significantly. So when this issue came back before the state legislature in 2021, they had the votes to successfully move it out of the legislature. It requires a two thirds majority in both the state House and the state Senate and put it on the August 2022 primary ballot.
Melissa Murray Can I ask two follow up questions on that? So one, the change in the state legislature is not the result of partizan gerrymandering in Kansas. And what’s the significance of slating this for the primary election in August as opposed to any other election?
Rachel Sweet To the first question, is this the result of Partizan gerrymandering? Perhaps we didn’t have different state legislative seats between the legislature that we had in 2020 and the legislature that we had in 2021. Right. It was Democrats losing seats instead of gaining them. And a lot of moderate Republicans getting primaried out of their seats for a variety of issues. And also, again, like a lot of states in 2020, we did not have a great year down ballot, great things happening up at the top of the ticket. Donald Trump not getting reelected was great, but down ballot. I think we, like a lot of other states, just struggle to make the same types of gains. And then to your question about the significance of putting this on a primary election ballot, that was absolutely intentional on the part of anti-abortion legislators in Kansas. There were multiple attempts to do amendments to the bill to get it on a general election dates. And they made it very clear that this was, you know, it was going to be on the primary ballot. And I think their intentions were obviously pretty political. Primary elections always have significantly lower turnout in the general elections, I guess, except in this most recent case. But that was their goal was to sort of stack the deck against the opposition to the amendment and pick their voters instead of letting the voters make their voices heard on this issue.
Sollie Flora And a couple of things related to that. Once it got the two thirds majority and the both the House and the Senate in Kansas, there was no option for the governor to veto. So we do have a Democratic governor, but there is no governor’s veto on the constitutional amendment going to a vote. And then the other thing on the primaries is that Kansas has closed primaries and historically only has contested primaries in Republican seats. So if you’re talking about depressing turnout and in particular Democratic or perhaps unaffiliated turnout, those voters are not as used to having to go out and vote in a primary and are less motivated by other items on the ticket. So you really have to count on turnout only related to this item.
Leah Litman Shifting gears to how the counter organization got started, the efforts to protect the right to abortion on the state level. We wanted to ask some questions about this since we’ve talked on the podcast about the importance of organizing in the wake of jobs and realistically for the foreseeable future. So now that we have the timeline about how the efforts to, you know, rescind the state’s constitutional protections for abortion on the table, how did organizing against those efforts get started like did they date back to the initial 20, 20, 2019 efforts to get this on the ballot? And how did people get involved initially.
Rachel Sweet In 2019 and 2020, the coalition that would become Kansans for Institutional Freedom was already working together in the state legislative fight, that we had to stop the constitutional amendment from getting out of the legislature the first time onto the 2020 ballot. So in some ways, this gave us a bit of a head start. This gave us a lot of opportunity to work together and to work on building our people power and building our volunteer capacity and our base through this state legislative fight. But obviously, we had to accelerate that tremendously after the amendment did pass out of the state legislature in 2021. But luckily, we well, we didn’t have, you know, all of the this tremendous campaign structure that we would develop. The a lot of the core folks that were working on this campaign and were a part of the reason that we had the victory we did on election night were sitting in the Lawrence Public Library together in 2019, starting to chart the path, which I think is just really cool. That what started as like five people in a conference room turned into a multi-million dollar campaign. And I don’t think any of us knew exactly what we were getting into that first time that we encountered this amendment.
Helena Buchman Each of the organizations that makes up the coalition that hired these incredible organizers who were on the ground and ready to go during the campaign after the leak. And so but I went to the first event that they held a few weeks after the leak. And the energy was incredible. These organizers, for some of them, this is their first time organizing ever in our state. They took the energy and met the moment. And so it’s been really impressive seeing all of their work. We also did a really good job, I think, of organizing with partners who are already on the ground in our communities here in Kansas. So like Rachel said, you know, this started out pretty small, but we were able to meet voters where they were by networking and harnessing the power of of youth organizers in southwest Kansas or faith organizers in southeast Kansas. And, you know, not reinventing the wheel, but bringing people in who have already been having those conversations in their communities for a long time. So it was just an incredible display of of unity. And these were volunteers from all political parties coming together to fight for our rights.
Leah Litman I love the story about how this got started at a five person meeting in a public library in Lawrence, because I think oftentimes, you know, people feel like, what can I do, you know, after they attend an event or there is, you know, such a significant event, whether that’s a good one like this, not getting on to the ballot initially in 2019 or, you know, the Dobbs League, but feeling like, what can I do? Where can I take this from here? So I guess building on those specifics, you know. How do you encourage people to get involved or what are different ways for different kinds of people to get involved? Like, say, the person who works 80 to 100 hour weeks but wants to help, like what can they do? Or a person who has like flexibility in resources devote a lot of time to this, like maybe just on the weekends or, you know, the person who has more time, like what are different ways people can get involved in efforts like this? You know, once that five person group at a public library, you know, gets it off the ground.
Helena Buchman Yeah. I mean, I think that there’s a place for everybody on campaigns like this. You would ideally there’s a place for everybody on all campaigns. But on this one, I think we did a pretty good job of making sure that there was a spot for everybody. We had a lot of volunteers writing postcards and if that’s like where their level was and that’s where their level was, we had so many people in state, but also, you know, across the country phone banking with us and making sure that our our zoom room for our phone banks were a really welcoming and kind space while we were talking about this challenging issue. My plug for people who are in state, if you are physically able to to knock on doors, that you’re a little bit scared of it, you being in state like that’s something that nobody else can do across the country. So I would definitely try to push yourself, find a friend. I was pushing a lot for Hot Girl Walks this summer where you can take a friend go canvasing and you know gossip with your friend on in between doors. So I think there’s there’s a way to do it for everyone and there’s a way to, like, acclimate to things that seem scary at first. But once you have these rewarding conversations with your neighbors, you feel really great.
Sollie Flora Yeah. And if you agree to canvass, you will always be the campaign hero, regardless of what the campaign is. If you’re willing to go knock on doors, that’s always, always the biggest help. But, you know, if you’re not local or if you’re constrained on time, like you were saying Leah, you know, donations are always really helpful. I think if you’re out of state and wanting to be involved or concerned in these types of issues, reaching out to your local contacts is really important. I got a message from a law school classmate who is now in California who rather than just sort of, you know, screaming into the dark, said, okay, I know someone in Kansas, what can I do to help? And so she asked me, how how do we get the turnout, what’s needed, what can. I do from here. And so I connected her with Kansans for Constitutional Freedom and said, you know, you can always donate. There’s the postcards like Helena mentioned. There are a lot of ways to be involved at any level. And just if you can’t donate hundreds of hours of time, you know, you shouldn’t let that discourage you from being involved.
Melissa Murray In addition to organizing and there was a lot of really great information about how to organize and what every one of us can do. I’d also like to maybe focus on the messaging here, and Michelle Goldberg had a really terrific piece in The New York Times a couple of weeks ago about how the pro-choice movement could actually learn from the anti-choice movement, which has been especially adept at getting their messaging across. They’ve actually managed to overwhelm the narrative with their messaging, which is really the point of Michelle’s piece, like they just sort of flood the zone with their messaging by having people out on Tik-Tok, on Twitter, just basically touting anti-choice talking points constantly. So how do you counteract that kind of messaging? Like what were the messages that you really emphasized in this campaign in Kansas? And how do you change your message, if at all, when you are speaking to people, when you’re canvasing door to door, or when you’re doing it in a more remote format, like does the message ever change?
Rachel Sweet That’s a great question. I would say the message is always a variation on a theme. So for us in Kansas, we invested a lot in research at the start of this campaign because again, this is not something that got stood up after the Dobbs decision came out, right? This was like a years in the making process. And so while we always knew that there was a possibility that we could be having an election a few weeks after Roe v Wade was overturned, you can’t build a campaign plan around something that is honestly like in many ways unthinkable happening. So we built a plan and built a messaging strategy around the electorate that we assumed we would have, which is a very conservative, very white, significantly older Kansas primary electorate. And of course, we wanted to. But you build around that around the electorate you expect, and you do the work necessary to get closer to the electorate that you want. So as we were looking not just at, you know, is this viable, right? Is this something that we can defeat? We were also looking really heavily in our research, both qualitatively and quantitatively, about messages and what messages resonate with the audiences that we are going to be talking to, because these voters are going to show up no matter what. So we might as well figure out an effective way to communicate with them. And what we really ended up with was what I would say is a very libertarian message that is really centered around personal freedom, personal autonomy. It is really centered around keeping the government out of one’s personal, private medical decisions. And truly, I think that is also an argument that is kind of the crux of the pro-choice position, really. It is about who gets to make decisions about the most personal, intimate aspects of our lives. Is it us or is it the government? And that’s also, luckily, a message that really resonates with voters across the political spectrum. We also knew that we would have to get into what can sometimes be a challenging thing within the reproductive rights movement, which is talking about exceptions. I think there is a sentiment that within some spaces in the reproductive rights movement that, you know, continuing to talk about exceptions and some like the worst case scenarios around abortion contributes to abortion stigma, which I think there’s like that’s probably a separate podcast episode. But I think in this moment that we’re in as a country, there is really an opportunity to talk to those voters who maybe do have some personal ambivalence or concern about abortion as like a moral issue or a religious issue, and really talk to them about the extreme policies that we’re seeing from the other side. Right. This is an opportunity to actually build a way bigger coalition then I think, you know, the pro-choice movement has has probably ever had before, because we have to talk to some of those folks that don’t agree with us on everything, but ultimately will show up and vote against policies that hurt them, that hurt their neighbors, that hurt their daughters and granddaughters. And I think that that’s that is what we had to do here in Kansas was talk to a lot of people who don’t agree with us and also a lot of people who were newly mobilized and engaged around this issue.
Helena Buchman If you look at Republican voters in Kansas, it’s still the case that in closed primaries, extremist candidates are far right, candidates are being elected. But if you look at sort of the majority of the Kansas voting population, I think what you found was some skepticism about the Kansas legislature acting in good faith on this issue and the exceptions that Rachel was talking about. And so there was a lot of concern even among people who might be sort of in the middle on this issue, that the Kansas legislature, if left to their own devices, would act in a very extreme manner that did not adequately protect women, that was not going to be a safe, safe place for themselves, their neighbors, their friends, their family. And I think that that message really resonated as well.
Melissa Murray So two observations. One is that the original sort of animating germ of opposition to government policies that dealt with reproductive rights like as early as the 1960s, were really about state overreach, like the state going too far. And perhaps that is, again, as you say, a salient issue that resonates across different ideological perspectives and and may be especially pertinent in the current moment where we are, where, you know, there are many people who think that the government has gone too far. And, you know, I think in Kansas, the fallout from the ten year old in Ohio, I think really resonated in a lot of ways and spoke to that idea of state overreach. But, you know, what was also, I think, really interesting about what you said, Rachel, was that this idea of sort of political purity can really stop us from building coalitions. And, you know, like, would it be perfect to talk about reproductive rights in ways that completely avoided the question of abortion stigma, of course. But in the sort of fight where you’re trying to keep access available deep in the heart of the country, like maybe the great can be the enemy of the good.
Rachel Sweet Yeah, I think that’s true. I think that, again, I really do feel like there is an opportunity to start bringing more people into the pro-choice coalition, so to speak. Folks that have not been. Vocal on this issue before. I think what we see a lot whenever we look at polling and research on reproductive rights issues is there are a significant number of people who would agree with the sentiment of I would not choose abortion for myself, but I would want other people to have that decision, right. Every time we did a focus group or a poll or even just talking to voters in Kansas at their doors, for a lot of folks, there was always that but, right. I don’t support abortion, but I’m pro-life, but. Like we people have created in many ways, the politics surrounding abortion are based on things that are frankly unrelated to the issues at hand. It is sometimes being pro-life is like it is a cultural or religious identity that one puts on. And when you actually talk to people and get into the nuances of how they feel about this issue, there’s just a far more complex story to be told. And I think we were able to talk to a lot of voters who are in that space and are waking up in this America that they frankly do not recognize and as Sollie mentioned, have a lot of skepticism about their own state passing extreme restrictions on abortion like they’ve seen other states doing right. Another thing that just comes to mind as we talk about this is, you know, we did research after the Dobbs decision as well, and we were like, you know, trying to discern, okay, how is this earthshaking event affecting the way that people are thinking about this? And what we saw is like we didn’t have to tell people that Roe v Wade was overturned. Right. Like people knew it. They felt it. And while I don’t think we picked up maybe everything that that Kansans were dealing with, and in response to that decision, clearly on election night, we saw that there were a lot of people that really stood up and paid attention after that decision. But we didn’t have to tell them about every horrifying story or tell them what Roe v Wade being overturned meant in terms of this thing that they have to vote on in a few weeks. Right. They knew it. They got it. And, yeah, we were able to just keep communicating with them and meet them in that space of discomfort and concern.
Leah Litman In the interest of being specific. You mentioned that the campaign took on kind of like a libertarian flavor to address who the electorate was going to be. And one of the messages that I saw that really stuck with me because I hadn’t seen it before, was this idea of no government mandates. Right? Government can’t mandate that women be pregnant. They can’t magnate that they stay pregnant. They can’t mandate that they give birth. And I had seen before this idea of no forced childbirth and obviously the no mandate issue was related to that. But it is just like a specific example of a message that captures a lot about what the pro-choice movement is about, but does so in a way that might be able to speak to, you know, another group of people. And on this issue of abortion stigma in particular, I just wanted to throw out an example. One thing that has come up here in Michigan is this idea that part of the cruelty of a ban is it just doesn’t account for individual circumstances or any particular circumstance and for the individual who is pro-life, but, right. Or would not get an abortion, but. There’s going to be some situation or some circumstance where they just don’t think the state or the government should be able to tell a person, yes, you must stay pregnant and you must give birth. And the problem with eliminating abortion rights is they open the way to bans and there just isn’t an alternative for protecting the right to an abortion, then eliminating the prospect of bans, because, again, like bans are just never going to account for all these individual circumstances. That’s a messy way of trying to explain it. But, you know, what were some of the other messages besides the no mandate theme that you all were working with?
Helena Buchman Yeah, that’s a great question. I definitely think Mandate got a lot of attention because it was slightly edgy. Yeah. And we did what I think a lot of campaigns wouldn’t do, which is actually serve that message to very conservative voters. So that was a message that we had on Fox News and Newsmax and weigh in and other places where I don’t think like progressive campaigns or progressive candidates would ever message. That was an important thing to us to do is to actually take that message to the voters where they are. I don’t think we’re going to persuade every Fox News viewer that they should support abortion rights. I don’t think that was ever the goal, but to really at least present them with an argument as to why this measure is dangerous and out of step with their values was really important in helping us get the margins that we got on election night. So that’s that’s all I’ll say about mandate. But people on Twitter, again, the Twitter men seem to really be fixated on that ad.
Melissa Murray The men’s wear fixated on a mandate. Amazing.
Sollie Flora I think related to the mandate and the like we’ve touched on a little bit, but a slightly different argument is sort of the too extreme for Kansas theme. So I think. There was a lot of discussion about how the Kansas Supreme Court struck the right balance. It isn’t that there’s a completely unfettered access to abortion or that there aren’t any, you know, public safety regulations, health regulations relating to abortion. It was that we have reasonable restrictions right now. And so if you’re looking to do something different, what’s the reason for that? It’s it’s likely because you want to go further. And so I think related to the mandate was a too extreme for Kansas argument that I think I heard a lot in individual conversations, including from some friends who surprised me, you know, who said, yeah, I’m voting no, when I thought there would be yes votes. And a lot of it was because of this, you know, striking the right balance that the system we have now strikes the right balance as opposed to if the Kansas legislature has their way. And I’m sure Rachel could speak to this more. But, you know, there was a pre filed bill in the Kansas statehouse that actually took that extreme position. And so that was actually helpful for me in talking to some folks that this wasn’t a hypothetical because that was one argument from the other side was, you know, this isn’t a ban, this is just returning power to the people or returning power to the legislature. But there were leaked comments from behind closed doors and also this pretty vile bill that showed that really was the intent.
Leah Litman So can I ask a question about just the disjunction between what we saw in Kansas and what happened in Indiana and maybe the differences between direct democracy, as it were, and representative democracy. So Indiana, the state legislature, passed this ban that is incredibly draconian. There are exceptions for the life of the pregnant person. Some exceptions for rape and incest. But there’s also an incredibly Byzantine process to actually get an abortion even under those circumstances. Indiana’s situation was it was passed through representative government, so the people had their preferences, ostensibly translated through their individual representative legislator, as opposed to Kansas, where the voters went directly to the ballot box and registered their preferences. And, you know, Sollie, I totally hear you on the point that this was actually a ballot initiative that was put on the ballot by the legislature. So it’s not a perfect example of direct democracy, but it seems meaningfully different from what happened in Indiana. I wonder if you could talk a little bit about those differences and maybe whether this could be one of the chances of it being replicable in other jurisdictions?
Sollie Flora Well, I think one thing you can easily see the disconnect between what got this on the ballot and the outcomes at the ballot box. Right. So you had two thirds of the Kansas House and two thirds of the Kansas Senate who are ostensibly representing the people of Kansas who said, yes, this is a good idea, we want this on the ballot. And then you had not quite that big a margins, but almost rejecting it when it got to a direct vote of the people. So I think, yeah, there is a disconnect and I would say that our legislature does not accurately represent the viewpoints of all Kansans.
Leah Litman So maybe now we can circle back to the passage in Justice Alito’s opinion, where he said women are not without electoral or political power, and ask how these post Dobbs developments bear on this. And this point that, you know, you both were just talking about, I think underscores that abortion is, I think contrary to what some in the Democratic Party thought, not an unpopular or a divisive issue. It is instead what Rene Bracy Sherman has described as a gerrymandered issue. You know, in a world where state legislatures are gerrymandered and have allowed themselves to be insulated from the will of the people or public opinion. Legislatures will do things that are not supported by a majority or even a super majority of the people. And this relates to so many of the issues we’ve talked about on the podcast, including the upcoming independent state legislature theory that would allow state legislatures to be freed from state constitutional limitations on their ability to draw gerrymandered districts and make the legislature even less representative of the people and less responsive to the people.
Melissa Murray I also think it underscores the real danger of the court hollowing out democracy and the entire infrastructure of democracy at the same time that it is ostensibly restored abortion to the states. Leah’s mentioned, Michigan, we could take another Midwestern state, Wisconsin, for example. Michigan is going to have a ballot initiative this fall about whether to add explicit constitutional protections for reproductive freedom in the state constitution. But in Wisconsin, there is no mechanism for a statewide ballot initiative. This goes to the you know, the question I asked earlier. There, the people have. To rely on their state legislatures. And coincidentally, the Wisconsin state legislature is one of the most heavily gerrymandered legislatures in the country, and it’s locked into Republican control even when Democratic candidates win a majority of the vote across the state. So how do you counter that kind of situation? And, you know, like when representative democracy may be less representative than you expect.
Rachel Sweet I would actually love for Helena to speak to this, too, because in addition to being our amazing field director, she also works in the Kansas legislature for the Senate minority leader. So she sees this firsthand. But in my experience, yeah, obviously there are serious issues with the foundational democracy in this country. There are states where, yes, clearly the state government is not representative of the people. That’s a huge project to undertake. But one thing I think that is in some ways manageable is creating different sets of political consequences for elected officials who vote for these extreme restrictions. Because what I have seen in my time, I used to lobby for Planned Parenthood in Kansas and talked to a lot of legislators about abortion and about why they do the things they do. And a lot of legislators are not true believers. There are just significantly more political incentives for them to vote against abortion rights than there are for them to vote for abortion rights. So I think some of this is, of course, a structural problem that is very challenging to address, and some of it is a political problem that we can address through creating better incentives for them to vote in support of abortion rights. I think that the vote on Tuesday here in Kansas shows that, again, this is a majoritarian position. Abortion should be safe and legal across this country, and there need to be folks that are making it really hard for legislators to take those kinds of votes in the first place. And I think that is one area where the anti-choice movement really has a leg up on us. They are very good at creating an environment where they wield a great deal of power in our state legislature. People are afraid of the actions that Kansans for Life will take against them if they vote against their policies. So do I think we need to make people afraid? Maybe not. But do do we need to create, like the support or the incentives for people to vote in support of abortion rights? And what does that look like? It takes money, it takes organizing, and it takes a sustained effort outside of just election years to create different incentives, because it’s significantly harder to change the fundamental things wrong with representative democracy in this country. But there is more I think we can do in the short term to change the way that politicians make these decisions. And I hope what happened in Kansas can be a part of that conversation.
Melissa Murray So one step would be to just change the political incentives. But Helena, it seems like one of the things that you did in this campaign was actually expand the electorate by bringing in people who probably would not have voted in this election because it’s a primary.
Helena Buchman Yeah. Just real quick on the the gerrymandered point and to speak to Rachel’s point about Kansans for life and the political power that they yield in the capital. We didn’t do congressional like we did redistricting this year in the legislature. And the redistricting maps were a scored vote by Kansans for Life. So they do not just for Republican legislators, I mean, I guess for everybody. But there were some Republican legislators who were not going to vote for the maps that leadership created and Kansans for Life made it a scored vote to pressure them into doing so. So it is all quite related. And I think, you know, part of it, yes, it is expanding that electorate and also meeting voters and telling them about who they are represented by at that moment. Because I think a lot of the conversation that at least I’ve had over the years in Kansas is, oh, yes, I support abortion rights, but I voted for this Republican politician because of these other issues that matter in this community. And the legislature is an extreme because of that politician. It’s extreme because of these politicians in this part of the state. And recognizing that it’s not it’s not everybody else in Kansas that is electing the wrong politicians and the wrong representatives. We are all accountable for that. And we hold a responsibility in that. And I think in having conversations with people who haven’t been engaged in that, the electoral political process of partizan elections but are really passionate about this and came out in droves for this. I think part of that is driving that home for for future elections.
Sollie Flora And I think as there is, you know, additional partizan, gerrymandering and increasing obstacles to the ballot box and we’re seeing all these anti-democratic measures across the country that it’s really hard not to be discouraged. But the key point is not to be discouraged. And, you know, I think the people who say, you know, voting is going to solve everything aren’t right. But the people who say voting doesn’t matter, they are perhaps even more wrong. And so. You know, every every election matters. And you need to have the turnout and the enthusiasm and be putting in the groundwork so that you have these sorts of outcomes every time. Because I think if you look at a lot of people and if you actually sat them down with their state reps, state senators, legislative record, you’ll see a mismatch. I think, you know, it’s not representative of the people of Kansas, and I think that’s probably true. Other places like Rachel and Helena have said, you know, making people see and holding your electeds accountable every election.
Leah Litman We said we would get back to the Twitter mens on democratic deliberation and federalism. I’m just going to quickly say the fact that a right is popular doesn’t mean that the Supreme Court was correct to say it’s not a right at all. So, for example, like, if you put to the people a vote, can the government force men to get vasectomies? My guess is most people would say no.
Melissa Murray But Let’s try. Let’s, let’s.
Leah Litman Right, exactly. In order to in order to underscore that men are not without electoral or political power, let’s say that they don’t actually have a right not to have a forced vasectomy. Put it to the people. And then if the people say the government can’t require men to get forced vasectomies, I was right to say there is no right against forced vasectomies. Right. You see what I did there?
Sollie Flora Yeah. I think the Kansas Supreme Court previewed that in their opinion as well. In the majority opinion, which was a per curiam opinion, they addressed the lone dissenting justice and brought up the point that, you know, this is an individual liberty interest. It’s a fundamental right and it should not be subject to a majoritarian dictate. So even though we got the right outcome in Kansas, it doesn’t mean it should be subject to popular will in this manner.
Rachel Sweet I’m glad you brought up the Kansas Supreme Court opinion as well, because these victories, you know, the one that was just obtained, the Kansas are super important. But as you were saying, this is not an issue that is going to be resolved in a single election. Instead, there needs to be an infrastructure to be focused on this issue for the long haul, because in a post Roe, post Dobbs world, these issue and these protections are realistically going to be on the ballot every single election for the foreseeable future at the federal and state level, like literally every single one. You know, we’ve talked about how that’s the case for federal elections, but that’s also true on the state level in many places. You know, Kansas just had this huge victory, resounding support for reproductive rights. But this upcoming November, several of the justices who were in the majority of the decision recognizing state constitutional protections for abortion are up for reelection. And if they are replaced by extremist ideologues, what could happen then? The Supreme Court could rescind the constitutional protections for reproductive freedom. And so it’s you go to the ballot and just this time this referendum, but also November and then again next time and then again the time after that, because every single time your rights depend on it. That’s what it means to like lose something as a fundamental right.
Melissa Murray And it’s not just Kansas, like Wisconsin has a major state Supreme Court election going on. And, you know, that’s a state where ballot initiatives are not a possibility. And the state legislature, as we said, is consolidated and Republican control. And the Supreme Court could be a bulwark for reproductive freedom if the court were differently constituted.
Sollie Flora Yeah. And you saw that exact outcome that you’re referencing in Iowa. So that exact same thing happened in Iowa and the court completely reversed course. And now we’re lucky here in Kansas that we, for our Supreme Court have an independent Supreme Court nominating commission. So qualified candidates are going to the governor’s desk. So that’s a hopeful, hopeful starting point. But the courts are consistently under attack. Six out of the seven justices on the Kansas Supreme Court are up for retention elections this year. And it is definitely a scary prospect of losing seats and talking to the public about why judges and justices matter at the state level can be a tricky conversation. So I think that will be the next next big hiccup for November.
Helena Buchman I’m just to highlight how extreme our legislature is. They also introduced a constitutional amendment to remove that independent selection process for our Supreme Court justices. So if anyone is wondering whether they’re trying to stack the deck, they are.
Sollie Flora Yes. And Derek Schmidt, who is our attorney general, was a supporter. There were two versions of that amendment that they were trying to get on the ballot. And he was a supporter and is, of course, now our governor, Laura Kelly’s opponent in the general election.
Leah Litman Isn’t Kris Kobach running to be your attorney general?
Helena Buchman Yes.
Sollie Flora There is also that. Yes.
Melissa Murray Voter suppression. Kris Kobach. Yeah, amazing. Okay. Stay positive, Kansans. On that note, how do you stay positive? We wanted to ask for your advice.
Leah Litman Like, can you see we’re in this and we do this podcast every week and I think we literally needed to flee the country for a portion of July and August in order to hit reset.
Melissa Murray Yeah, like Leah literally did a James Baldwin and went to Paris and the rest of us stayed here. How do you stay positive? I mean, like this was a bouying moment, but these moments are so few and so fleeting. How do you all stay positive in the wake of what seems to be a generational catastrophe and all of the horror stories that we’re hearing around the country. What’s your advice for us?
Sollie Flora The sense of camaraderie is really important. So, you know, sort of the we’re in this struggle with others who also see the struggle and who are putting in the work. And it’s hard not to be disheartened by, I think, focusing on where you can make an impact really matters. So. You know, Rachel was talking about there is a wide myriad of problems with our representative democracy and you’re probably not going to be able to take individual action and solve all of that. But, you know, there probably is something in your own backyard that you can do that will make a positive difference. And you’re not going to win every fight. But, you know, you can never win. What’s the saying? You can never win the fights you don’t even join.
Leah Litman You miss the shots you never take.
Sollie Flora There you go,you miss the shots you never take. Yes, exactly. You have to be willing to step up and take the risk and get involved.
Helena Buchman I stay positive because of people like Rachel and people who are doing the work and also who bring other people in to do it. When Dobbs happened, I was in therapy. It was a really great place to be. But I didn’t. I wasn’t. And maybe it’s because I haven’t fully processed it. But I was not feeling the same feelings my therapist was feeling because I had hope and I knew that we were we were doing the work and that the people around me were doing everything necessary to protect this right in my state. So I know that there are people just like us around the country who are doing this and their communities. And so that gives me hope.
Leah Litman I love the idea of you providing therapy to your therapist.
Helena Buchman Yeah, it was. I walked in, I was like, Hey, this might happen in 10 minutes. And she was like, Why?
Melissa Murray Rachael, any advice?
Rachel Sweet I think it’s kind of cool that the probably the number of Kris Kobach and no voters is not. It is a nonzero number which gives me hope that like people continue to contain multitudes and there’s a lot of work we need to do to talk to them. My team, Elena and Ashley, all our comms director, give me like tremendous amounts of hope, like working with good people who are willing to do this work at, like, really very little personal benefit to themselves besides a wage, right? Like, I don’t know that there’s anything glamorous about, like, organizing or, you know, talking to the Topeka Capital-Journal about a ballot measure. Just people doing it because it’s the right thing to do. I also is I don’t know, I always feel really good after talking to like voters actually just to actual people in Kansas. That has been one of the best things in talking to our volunteers and just seeing people who really stood up to get involved in this that probably hadn’t been involved in reproductive rights work before. Helena, I’m thinking about Ted, from Miami County, who was like, I was at our field office like the week before the election, and he’s just like this really typical, like, all-American looking dude. And just doesn’t look like that, like the pro-choice, like, activist person that, like, comes to knock doors for abortion rights. And I just asked them, like, hey, you know, how’s it going? What brought you out today? And he’s like, Well, I have three daughters. And instead of just being an ally, you know, saying that I’m an ally and I have their back, I’m actually going to do something about it. So he’s like.
Melissa Murray Wait, So he didn’t just hire a whole chambers full of female clerks. He actually went and knocked on doors for abortion rights. A father of daughters. I love you All American, Ted. Strict Scrutiny shout out to All American Ted in Miami.
Sollie Flora Love, Ted. And I do think also in the spirit of this podcast, that another really important part is celebrating the wins, you know well and also that self-care. So, you know, running away to Paris or I ran away to Glacier National Park. But the self-care and taking time to celebrate when things do go well rather than, you know, immediately fretting about the next thing you know, there’s there’s time to fret about the next thing for sure. But make sure to celebrate the win.
Melissa Murray While we are celebrating this win. This is a fantastic win. And you all have given us great advice about how to move forward, how to organize, how to message, and how to bring together people from across the ideological spectrum against what is a message of government overreach and encroachment. So thank you for all of the work that you’re doing in Kansas. Thank you for everything you did to support this historic win. And thank you for letting us and for once, on a positive note. So let’s keep all of this going. Like lots of great stuff here that each of us can do in our daily lives all of the time.
Rachel Sweet Thank you so much.
Helena Buchman Thanks for having us.
Leah Litman [AD]
Melissa Murray As always, Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Kate Shaw and me, Melissa Murray produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and this summer intern support from the indefatigable Anoushka Chander. Thanks for listening.