Jurisprudence

Kansas Set Up an Election for Voters to “Decide” Abortion. Then It Stacked the Deck.

The move underscores the problem with the Supreme Court leaving abortion up to the states.

The state of Kansas, with a "vote here" sign.
Photo illustration by Slate. Photos by AndreyPopov/iStock/Getty images Plus and Rainer Lesniewski/iStock/Getty Images Plus.

Roe v. Wade is gone. In a landmark decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled nearly 50 years of precedent guaranteeing the right to abortion in the United States. In the wake of that decision, abortion policy will now be determined through the legislative process, mostly at the state level. Indeed, the majority opinion is premised largely on the notion that “the authority to regulate abortion must be returned to the people and their elected representatives.” But legislators keen on restricting abortion access are already showing that they have no interest in truly letting the people decide.

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On Aug. 2, Kansas will become the first state to put abortion policy in “the people’s” hands, holding a vote on whether to amend its constitution to remove the right to abortion. But there’s a catch: Kansas will hold its vote on abortion rights during the state’s primary election—a scheme deliberately crafted to minimize Democratic and moderate turnout and ensure the Amendment passes.

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The Republican legislature timed the abortion vote knowing that Kansas’ 2022 primary would be heavy on contested Republican races and light on Democratic ones. It also knew that nearly 30 percent of Kansas voters are registered as “unaffiliated,” and that those more moderate voters are unaccustomed to participating in primary elections because they cannot vote partisan ballots. So by scheduling the vote on abortion rights for the August primary, the Kansas legislature stacked the deck in favor of Republican turnout.

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This ploy is a direct response to a 2019 Kansas Supreme Court decision holding that the Kansas Constitution secures a right to abortion separate and independent of the federal right. That means Kansans retain a right to abortion even now that the Supreme Court has overruled Roe. And the state could become a crucial source of reproductive healthcare for residents of nearby states like Texas, Oklahoma, and Missouri, which appear prepared to implement some of the country’s strictest abortion bans.

The Kansas state legislature, however, is controlled by a Republican supermajority that is determined not to let that happen—even though most Kansans favor some level of access to abortion.

For Kansas to override its own Supreme Court and enact an abortion ban, it must first amend its Constitution. And that’s exactly what it’s trying to do. The Kansas Constitution can be amended by a two-thirds vote of both legislative bodies and a subsequent majority vote by the state’s voters.

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The process is well underway. In 2021, Kansas’ Senate and House each passed, along partisan lines, the diplomatically titled “Value Them Both Amendment,” which would establish that “the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion.” Though the Amendment is not an abortion ban itself, it does permit the legislature to enact abortion bans to the full extent permitted by the U.S. Constitution, including banning abortion in cases of “rape or incest.”

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The Amendment now requires the approval of Kansas voters, and the legislature did its best to hand-pick who those voters would be: It opted to hold the vote at a time it believes Republican turnout will far exceed Democratic and unaffiliated turnout—the state’s Aug. 2 primary election. If it had truly wanted to put the state’s abortion policy in “the people’s” hands, it would have scheduled the vote for the general election on Nov. 8.

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This would be a devious scheme in any state, but it is particularly so in Kansas. For starters, the state’s turnout in general elections has, historically, been double its turnout in primary elections. So the legislature scheduled the vote knowing full well it would likely cut public participation in half.

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What’s more, Kansas is home to a uniquely high number of “unaffiliated” voters. According to the state’s voter registration data, Kansas is 44 percent Republican, 26 percent Democratic, and 29 percent unaffiliated—so Democratic and unaffiliated voters together outnumber Republicans. Those unaffiliated voters—who often vote Democratic (Kansas has a Democratic governor and Joe Biden won over 41 percent of the vote in 2020)—cannot vote in partisan primary elections without changing their registration status. To be clear, unaffiliated voters can vote on “non-partisan questions” on the ballot—including the “Value Them Both Amendment”—but because they are unaccustomed to voting in primaries and have little else to vote on in August, the legislature anticipated low unaffiliated turnout.

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Finally, Republicans have far more high-profile primary contests expected to drive turnout in August than do Democrats—including primary contests for governor, attorney general, and the newly constituted Congressional District 3. Democrats, meanwhile, have the incumbent governor, an uncontested attorney general race, and no contested congressional primaries. The legislature expected this to ensure that the share of Republicans who turnout on primary day would far exceed the share of Democrats.

All told, Kansas’ special election on abortion rights is engineered to let Republican primary voters decide the issue while the voices of Democrats and unaffiliated voters—who make up a combined 55 percent of Kansas’ electorate—go unheard.

If the amendment passes, it will not be a vindication of the Supreme Court’s belief in deciding abortion policy through democratic processes. Instead, it will be another casualty of a democracy increasingly designed to count some votes more than others.

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