Kansas rocked the political world on Tuesday night, rejecting an attempt to amend the state constitution to strip away the right to an abortion in a massive landslide. In this week's edition of The Downballot, we pick apart the vote with law professor Quinn Yeargain, an expert on state constitutions. Yeargain explains how the amendment came to be on the ballot, what might've caused the huge spike in voter turnout, and what lessons Democrats should take away from the election (hint: abortion rights are popular, so lean into them).
Co-hosts David Nir and David Beard also recap Tuesday's other key races, including Trump picks prevailing in Senate races in Arizona and Missouri (if you allow that "ERIC" nonsense); a pro-impeachment House Republican going down to defeat in a Michigan seat Democrats are now better-positioned to flip in November; and the return of the notorious Kris Kobach, who narrowly won the GOP nod for Kansas attorney general and could once again jeopardize his party's chances in a race Republicans have no business losing.
David Beard:
Hello and welcome. I'm David Beard, contributing editor for Daily Kos Elections.
David Nir:
And I'm David Nir, political director of Daily Kos. The Downballot is a weekly podcast dedicated to the many elections that take place below the presidency from Senate to city council. You can subscribe to The Downballot wherever you listen to podcasts, and we'd be grateful if you would leave us a five-star rating and review on Apple podcasts.
David Beard:
Primary season is back in full force this week and we have a ton to cover. So what are we going through today?
David Nir:
Oh man, do we ever. We are going to be wrapping up results in Kansas, Arizona, Michigan, Missouri, and Washington. And of course, we are going to be spending a lot of time talking about that state constitutional amendment vote that went down in massive flames on Tuesday night. We're going to be talking about that with law professor Quinn Yeargain, a long-time Daily Kos Elections community member and an expert on state constitutions. So, so much to dive into. Let's get started.
David Nir:
We have a ton of elections to catch up on from Tuesday night. Number one, of course, on everyone's lips is the Kansas constitutional amendment that would have stripped the right to an abortion from the state constitution. It went down to defeat in flames by a huge double-digit margin, about 18 points. We are going to get into that one in great depth with our guest on this show coming up in the second part of this program, but there is one other Kansas race, though, that we do want to mention. That's the Republican primary for state attorney general. That position is open this year and the GOP primary was won by Kris Kobach, the former secretary of state, who you'll remember from his disastrous 2018 bid for governor. He was so awful that he played a key role in allowing Democrat Laura Kelly to flip that seat. Kelly is up for reelection this year.
David Nir:
Kobach also ran for Senate in 2020 and Republicans were so worried that he could jeopardize that race, too, that they spent millions of dollars to successfully stop him from getting the nomination. Outside Republican groups really didn't try to stop Kobach this year and there's a chance that his sheer and unique awfulness will put this race into play. He faces Democrat Chris Mann in November.
David Beard:
And Kobach, of course, has near-universal name recognition among Republican primary voters after such contested races over the past four years. So the fact that he only got 42% of the Republican primary vote here shows that there are a ton of Republicans who did not want him to be the nominee and who could potentially vote for the Democrat in November.
David Nir:
Over to Arizona. We also had a bunch of hot races there. In the GOP primary for governor, it still has no call from the Associated Press, but former TV anchor Kari Lake, who is Donald Trump's pick, leads Karrin Taylor Robson by about 2% of the vote. In a great irony, Robson won the vote that was tallied on the earlier side while Lake dominated among the vote that came in on Election Day. Lake is an extreme Big Lie conspiracy theorist who is exactly the sort of Republican who would scream about the results shifting after Election Day, except, of course, they've shifted in her favor this time. She is looking like the likely nominee at this point and she will take on Democrat Katie Hobbs, the secretary of state, who won her primary easily. This is for an open seat held by term-limited Republican governor Doug Ducey.
David Nir:
Of course, Arizona also has an extremely high-profile race for Senate where Blake Masters won with 39% of the vote. He is the candidate backed by venture capitalist Peter Thiel, and also Donald Trump. He will face Democratic incumbent Mark Kelly, who, of course, won the special election to flip this seat two years ago. Kelly has absolutely dominated in fundraising. Polls show him with small leads. Of course, Republicans are going to do everything they can to try to take this seat back, but right now it looks like Kelly has a small edge.
David Beard:
Then up in Michigan, there were a number of really important races that took place on Tuesday. We'll start at the top with the governor's race, where conservative commentator Tudor Dixon comfortably won the GOP nomination for governor with 41% of the vote and she'll be facing Democratic incumbent Gretchen Whitmer, who will seek a second term. Of course, this race was shaken up after two leading candidates where dropped from the Republican primary ballot after fraud was discovered in their election petitions, which left, really, a total lack of a frontrunner and real lack of clarity. Of course, Tudor Dixon started to come to the front and then Trump endorsed her, which very much solidified her position as the frontrunner and so she'll face Whitmer this November.
David Beard:
Then there were two congressional incumbents who were defeated in Michigan on primary night. We'll start in the 3rd District where John Gibbs defeated GOP incumbent Peter Meijer, who, of course, was one of 10 Republicans to vote for Donald Trump's impeachment, which painted a very large target on his back, of course, by Trump and many others in the Trumpist wing of the party. It ended up being very close. Gibbs won by 52 to 48 margin. I think the expectation was that Gibbs would win a little more comfortably than that, but of course margin doesn't matter when you've advanced to the general election. Gibbs will go on to face Hillary Scholten in November in a seat that Biden won by 9 points, so should be highly competitive.
David Beard:
Then in the 11th District, two democratic incumbents were paired together after redistricting and representative Haley Stevens defeated Andy Levin in this matchup, winning by about 60% to 40%. Stevens and Levin each won their parts of the district fairly comfortably, but Stevens really dominated in the part of the district neither of them had represented before, which led to her comfortable victory.
David Nir:
One really unfortunate thing about this outcome is that Levin was a rather well-liked member of Congress, especially among progressives and labor and a lot of folks, not just commentators like ourselves, but other members of Congress really felt that he should have run in the open 10th District. That is certainly a much more difficult district. It is very narrowly divided, whereas the 11th is comfortably blue-leaning. Of course, Levin, if he had run in the 10th, might nonetheless have lost in November, but he at least would've had a stronger chance of returning to Congress. The fact that he got blown out 60 to 40 is really an unsurprising result that I think a lot of folks had anticipated.
David Nir:
Moving over to Missouri, we had a hotly contested GOP primary for the state's open Senate seat, but it turned into a landslide there. State Attorney General Eric Schmitt won with 46% of the vote. He beat Rep. Vicky Hartzler, who took just 22% and disgraced former Gov. Eric Greitens' finish with just 19%. This, of course, is the race where the day before the election, Donald Trump oh so cleverly decided to endorse ERIC in all caps so that way he wouldn't have to decide between Eric Schmitt, who the GOP establishment greatly preferred, and Eric Greitens, who, because he is an alleged abuser, Donald Trump preferred. Trump did totally hate Vicky Hartzler, reportedly, because she refused to back off her criticisms of Trump's behavior around Jan. 6. So Trump gets his Eric, and Schmitt will now face off against Democrat Trudy Busch Valentine. This is a seat that Republicans are overwhelmingly favored to hold.
David Beard:
Lastly, we'll wrap up in Washington state where we have partial results. Of course, Washington state is almost entirely vote by mail and as a result, many of the ballots will come in the days to follow, obviously, as long as they've been postmarked by Election Day, but we do have a significant chunk of results and so we can look at the results in the two Congressional races where GOP representatives who voted to impeach Donald Trump were facing Trumpist challengers who were trying to knock them out of the top two slot. Of course, in Washington state, everyone runs on one primary ballot and the top two finishers in the primary advance to the general election. And it's looking like as of now, with the results that we have, both Jaime Herrera Beutler in the 3rd District and Dan Newhouse in the 4th District will be able to advance to the general election in the top two slot for November.
David Beard:
Right now, in the 3rd District, we've got Marie Perez, who is the main Democrat leading with 32% of the vote. We've got Herrera Beutler in second place with about 25% of the vote and Joe Kent, who is the Trump-endorsed candidate, on 20% of the vote and that's with about 57% estimated in. And then in the 4th District, Dan Newhouse is leading with 27% of the vote. He's the incumbent Republican. Doug White, the main Democrat, has 26% of the vote. He's in the second spot. And Loren Culp, who was the, again, Trumpist-endorsed challenger, has 22%, so in third place. And really, in both of these cases, the Trumpist candidates were hurt strongly by the clown car effect, for lack of a better term. There were four Republicans running against Herrera Beutler and they combined for over 35% of the vote, which would've comfortably led Herrera Beutler's 25%. And over in the 4th District, there were six Republicans challenging Dan Newhouse and the one Democrat and they combined for over 40% of the vote. Had one challenger been able to consolidate the Republican anti-Newhouse and anti-Herrera Beutler vote, there's a good chance they would've been able to advance and certainly, in the 3rd District, they would've advanced against the Democrat.
David Beard:
It's conceivable you would've ended up with Newhouse versus Trumpist candidate in the 4th District because that's much more a Republican district, but either way, it looks like both Newhouse and Herrera Beutler will likely advance and then will likely comfortably win their elections in November.
David Nir:
That means as a result, we might see as few as three of the 10 House Republicans who voted for impeachment on the November ballot. The only other one with a guaranteed spot is David Valadao in California's 21st District. Liz Cheney still has her primary coming up, but she is looking very likely to lose. Valadao could also certainly lose the general election as well. So if Newhouse and Herrera Beutler hold on, they might be the only two pro-impeachment Republicans to make it into the 118th Congress.
David Nir:
That does it for our weekly hits. Coming up, we are going to be talking with state constitutional expert Quinn Yeargain about the amazing results out of Kansas and also interesting and quirky features of state constitutions nationwide. Please stay with us.
David Nir:
I am extremely excited to introduce our guest on today's show. Quinn Yeargain is an assistant professor of law at the Widener University Commonwealth Law School and they're also an expert on state constitutions and a longtime Daily Kos Elections/Swing State Project community member, so it's amazing to see someone who I originally knew in the comments section truly make good in this field. Quinn, thank you so much for joining us.
Quinn Yeargain:
It's fantastic to be here. And I'll just say I think I've been around since 2009 and a number of comments helped inspire some of my very, very first academic works. It's really been a wonderful community and I'm so glad to come back in this capacity.
David Nir:
That is truly fantastic to hear about that inspiration and what makes it all the more perfect is that the area of expertise that you have developed in state constitutions and state politics is exactly what we have to talk about on this episode. On Tuesday night, we, of course, saw Kansas voters reject an attempt to amend their state constitution by a massive landslide, 59-41 margin. This amendment would have said that the Kansas Constitution does not recognize any right to an abortion. And the most amazing thing about this, to me anyway, is that Republicans did this to themselves. They handed themselves this opportunity for this enormous defeat because they're the ones who put this amendment on the ballot in the first place. So Quinn, why don't you walk us through the background about how exactly we got here?
Quinn Yeargain:
Yeah. Kansas is a place that rather strangely, maybe, has had a pretty good string of Democratic governors in the last 15 years or so. And so as a result, for a while, a majority of the Kansas Supreme Court has been Democratic appointees. And so a few years ago, the Kansas legislature passed a pretty strict abortion ban on some second-trimester abortions, specifically dilation and extraction abortions. And several Kansas doctors challenged that in state court, arguing for the very, very first time to the Kansas Supreme Court that the Kansas Constitution's Bill of Rights actually is more expansive than the U.S. Constitution and contains an explicit and stronger protection of abortion rights than the U.S. Constitution does.
The Kansas Supreme Court was almost entertained by this argument because they pointed out nobody really litigates state constitutional provisions. Anytime that anybody's making an allegation that something violates a right or a liberty or something like that, they rely on the federal constitution, so this was the first time that they'd ever had the opportunity to actually rule on this. And in a 6-1 ruling that Kansas Supreme Court said, "Yes, there is a right to abortion in the Kansas Constitution," they used something akin to strict scrutiny, which is really, really critical of government regulation of particular rights to strike down this particular law.
But the effects of this, actually, weren't really all that clear. Kansas has had a Democratic governor again since 2019 with Laura Kelly and so the legislature hasn't had an opportunity to really try a whole lot to outlaw abortion. They have a veto-proof majority right now. It's not clear if it's actually a veto-proof majority to enact new abortion regulations and so the actual long-term impact of this ruling is not really all that clear. So in 2021, they proposed an amendment to the Kansas Constitution that said that there's no right to an abortion or government-funded abortions in the Kansas Constitution. And then they decided to schedule it in a way that coincided with the Republican primary, or all primaries in Kansas, in the hopes that it would ultimately benefit their side to have that, so they called a special election and happened to have it coincide with the primary election, then obviously, went down in flames and defeat.
David Nir:
You mentioned that Republicans put the amendment on the ballot, but they took that action in 2021. Do you know why it took so long, basically almost a year and a half, before it could actually come up for a vote?
Quinn Yeargain:
So they could schedule a special election for any time that they want, I believe, and so this is more my guess than a statement of fact, but I think that they decided that it would probably be to their advantage to do it when there was a contested Republican primary. At this point in 2021, I think it looked like there was going to be a contested Republican primary for governor. And in that event, high Republican turnout probably would've been really helpful. Obviously, that didn't end up being the case and Derek Schmidt won his nomination pretty much unopposed, seriously unopposed anyway, so it didn't end up panning out for that reason. But even in Kansas, when there's no real big contest, you're still going to get more Republicans turning out, especially in a primary election, than you are Democrats.
David Nir:
And yeah, on that note, it is pretty clear that they were hoping for generally low turnout in a summertime primary, perhaps juiced by this gubernatorial primary that really never came to pass, but we saw that backfire spectacularly. Just to put this in perspective, as of right now, more than 900,000 voters showed up on Tuesday. And many of them, as Beard noted on Twitter, only voted for the amendment. They didn't vote in other races. By comparison, in the 2018 general election, which saw an extremely heated race for governor, you had about 1 million voters, so we're talking turnout of almost 90% for a summertime primary compared to a general election. What do you make of that?
Quinn Yeargain:
I saw somebody on Twitter say that this is what happens when the dog catches the car. For years, Republicans have been pushing to overturn Roe v. Wade, to criminalize abortion and I don't think that they've really grappled with the electoral consequences of actually getting what it is that they've been organizing for the last 50 years. And you have this thing that is not wanted by the vast majority of Americans, the exact percentage, obviously, depending on how you ask the question, but Americans generally supporting Roe v. Wade and a lot of voters haven't really had to grapple with what do their votes mean when it does actually determine whether abortion is legal in their state or not. And that's where I think a lot of this comes from, that voters understood even with the bullshit way in which this amendment was written, which was terribly unclear, I think voters grasp that, "Okay. If this amendment passes, then the legislature is pretty much free to do whatever it wants to regulate or much more likely outlaw abortion altogether."
And I think that in that kind of context, when you don't have to sort through the issues, a candidate's platform, anything like that, you don't have to think really critically. It's really one thing that you care about on the ballot and that's what you have to show up and do. The stakes are really clear. It's really understandable. Voters get that and I think that it made it really easy for people to get involved. I think it also helps that when you're seen as doing this backhanded sneaky move of scheduling the election at a weird time, I think it's really easy for it to backfire and I think that it absolutely did that here. I think it's the exact same dynamic that in South Dakota two months ago, when, again, legislature put an amendment on the ballot in the primary election, voters came out in droves to oppose it. I think it's the exact same dynamic.
David Nir:
I did appreciate when Republicans on Twitter, as soon as it became clear they were going to go down to defeat, started complaining that the badly written ballot language, which was written by Republicans, as the reason that voters voted against the amendment, so that was a nice bit from after the election. But before the election, you actually went and predicted that the amendment would fail on Twitter in part, because, and I quote, "The surprisingly close outcome of similar amendments in more conservative states." And you also predicted it would be a margin of 8 to 10 points, which it, of course, ended up being even larger than that but that was fairly close, considering the close polling that had taken place before. So what led you to make that prediction?
Quinn Yeargain:
Well, what really inspired it was I saw a tweet that summarized a press briefing that the Kansas Secretary of State's Office had with reporters when they said that turnout was exceeding their wildest expectations and they'd previously disclosed a few days ago that they were anticipating high turnout. And so to hear that, that they're anticipating really, really, really high turnout that's higher than what they were anticipating anyway, which is already going to be high, that made me have the realization, that the dynamic that I just talked about. When you are trying to sneak something through and voters get wind of what's going on, I think that dynamic can flip on you where it can supercharge turnout in the exact opposite direction. It makes it easy for voters to turn out because like I said, there's one thing that they really care about on the ballot. It's easy for them to do it.
And if you look at the range with which states have ratified similar amendments, it’s all over the map. You have Alabama and Louisiana ratifying amendments like this with really, really high double-digit margins but then in Tennessee and West Virginia, only by single digits and it's pretty close. And the real difference is that in Tennessee and West Virginia, there were state-supporting court holdings on point that were the law in those states that said that there is an independent state constitutional right to an abortion. So by voting yes in those two states, voters were actually changing the status quo. But in Alabama and Louisiana, those constitutions have never been held to imply any sort of separate right to an abortion.
And Kyle Kondik had shared this really interesting article that came out last year on the status quo bias in ballot initiatives and that when push comes to shove, if an amendment or an initiative is going to change the status quo dramatically, “no” probably has something of a built-in advantage because voters aren't going to do something if they don't fully understand the consequences. All that stuff came together and I think that Kansas is a state that seems uniquely primed to not want something like this, despite its socially conservative reputation, because it's also a heavily suburban state. And if you supercharged suburban turnout, which seems like that's exactly what happened, then that suggested to me that it would lose by a fairly wide margin. I think that pretty much everybody's wrong assumption was that they were too conservative about how supportive of abortion rights they thought Kansans would be, which is a fun sentence that you didn't really think you'd get to say in 2022.
David Nir:
Speaking of that status quo bias, we've talked on this show about two other states where abortion will also be on the ballot this fall: Michigan, where activists are trying to enshrine abortion rights affirmatively into the state constitution, and then Kentucky, where an amendment similar to the one that just went down in flames in Kansas is going to be on the ballot. Now, Kentucky is a much more conservative state even than Kansas is. Trump won it by 26 points; he won Kansas by about 15 points. And also, Kentucky, based on your research as I understand it, does not have a similar State Supreme Court ruling that has said there is a right to an abortion, so you don't have that status quo bias in place. So what, if anything, do you think the Kansas vote says about the chances of defeating the similar amendment in Kentucky?
Quinn Yeargain:
I think it's tough. I mean, obviously, Kentucky is a much more conservative place, I think, maybe not in terms of always how it's voted in the past, obviously, at the state level, but in terms of the values that a lot of its voters have.
It's a much more socially conservative place. I think that there are also fewer places that you'd logically anticipate might otherwise vote for Republicans, but would vote against something like this. I mean, you're really putting a lot of stock in the three Kentucky counties that are sort of the Cincinnati suburbs, really having sort of a hard left shift that they kind of had in 2019, but not as much and not as dramatically as Kansas. It all comes down to what the Kentucky courts do in the next few months.
As you know, a couple weeks ago, a Kentucky court blocked the state's abortion ban on state constitutional grounds. That ruling was later stayed, but it could well be the case that the Kentucky Supreme Court steps in at some point to issue some ruling. I'm pretty doubtful that they would come in and say, yes, there is a separate constitutional right to abortion in the Kentucky Constitution. It's a pretty conservative court. That would be pretty surprising to me. I guess if I really had to predict an outcome, I would say it probably narrowly passes, but I'm not confident enough in that. It wouldn't surprise me if there was some kind of backlash, but anticipating a double-digit win like in Kansas seems too optimistic.
David Beard:
Now, there're a ton of states that won't allow initiatives on abortion moving forward because of the variety of ways in which states govern and have rules around that. Folks are going to have to look to Democrats to protect abortion rights. Now, Trump, as Nir mentioned, won Kansas by 15 points, but the no vote prevailed by 18 points. So that's a massive, massive 33-point swing and it means that a hugely significant number of Kansas voters voted for Donald Trump and then voted against that amendment.
But of course, as we've seen in a lot of instances, voting on an amendment or an issue does not necessarily translate to voters voting for the party associated with that position on that issue. What can Democrats learn? What can progressives learn thinking through this and how to use this to motivate, to pull votes for Democrats in these states where you're not going to have an amendment to vote on for abortion rights?
Quinn Yeargain:
I think that the message kind of has to be that abortion is on the ballot, even where it isn't explicitly. I think that the idea that the sort of generic congressional ballot would have this kind of vacillation that it's had back to Democrats where I think it's tied in 538's tracker as of today, to me that's not something that really is all that common in midterm elections. Not to mention the fact that Biden's approval is obviously still really bad and Democrats are doing much better than you anticipate given that as well as general pessimism relating to the economy. And that suggests to me that there's some sort of fundamental shift in this country, that voters really do actually care about this in a way that maybe they're not actually showing to pollsters.
And I think that, especially in swing states—it’s probably less likely to be successful in really conservative states—Democrats have to lean into this message. I think at this point it is about base mobilization. It's obviously about persuasion too, but abortion is an issue where you can both motivate and persuade. I think that making the stakes really clear to voters that if you vote for a Republican, for governor, for legislature, they'll ban abortion. There's not a question about that. They'll ban abortion. And to the extent that they're saying, “Oh no, we won't,” a lot of them are on record saying that's exactly what they want to do.
There are these really draconian laws that maybe they never thought would ever come into effect, maybe where they were just test cases to get them the Supreme Court to overturn Roe. It doesn't matter because they can be the law now. So I think that in a way that they've never really had to in the past, Republicans really have to stand on their record on abortion. And it's not a record that I think a lot of voters are going to be sympathetic to once they learn a little bit more about it.
I think that rather than buying into the nonsense advice of just playing to pocketbook issues or something like that, they need to lean into something like this. Abortion is a pocketbook issue. Tell someone who is not of very much money in a very conservative state, that's bordered by other conservative states, who has to either take a flight or drive hundreds of miles to get an abortion, that's a pocketbook issue. And I think they're framing it in sort of that kind of economic justice way, I think that could be successful. I also think that again, this is something that you can both motivate and mobilize on. And so in the end, I think that this is a winning issue for Democrats.
David Beard:
Obviously, abortion is going to be the number one issue for the election going forward, at least for large segments of the population, but there are quite a few other ballot initiatives taking place in other states. And we want to keep an eye on those too. So what are some of the most interesting issues that are going to be going directly before voters this year?
Quinn Yeargain:
Well, in pretty much every state, there's something interesting on the ballot somewhere. Maybe it's interesting to just a really narrow sliver of the population and me on top of that, but it's interesting to someone somewhere. I think that one of the biggest things that is happening this year is Alabama is voting on what you might call a new constitution. Alabama has long had the longest constitution, not just of any state, but of any country or subnational entity anywhere in the world and it's bulky, it's overburdened, and they're voting on a new one this year. Hooray, it's going to be shorter. But even with all of the racist provisions cut out and all of the superseded provisions cut out, it's still going to be the longest constitution anywhere in the world. So maybe not that impactful on practice.
In terms of some attacks on direct democracy, there're two in Arizona that I think are significant to point out. Arizona does not have a single subject requirement for its initiated statutes and constitutional amendments. Single subject requirements are hardly ever applied in any sort of consistent way. And a lot of courts use them to strike down a lot of progressive initiatives. Florida, horrible offender on this. Arizona doesn't have one, but there is one on the ballot this year to add one.
They're also trying to raise the threshold required for initiated amendments in both Arizona and Arkansas to 60%. There hasn't been a huge effort in Arkansas to use the initiative process, but it's been used some in the last few years. There are some changes to the structure of state government. There's an amendment on the ballot in Arizona to create a lieutenant governor. There's also one in West Virginia that would bar any state court from exercising jurisdiction over impeachments. Hypothetically, should that ever be relevant again, definitely not based on the time that the state legislature launched a coup of the state Supreme Court in 2018, and some of the court stepped in to stop some of that.
And there're also some efforts in a couple states that would allow the legislature to call itself into special session. That's a really small, specific thing to point out, but in a lot of states, legislatures actually can't convene themselves unless the governor calls them at a session, and that affects a lot of things, like how long governor's appointments serve or appointees serve, administrative rules and regulations, and really limits the ability to legislature to check the governor. This is happening in a lot of states where there's been pushback to public health measures in particular. And if the legislature's out of session, it can't undo the governor's public health measures. So those are on the ballot in Arkansas, Idaho, and Kentucky.
There could be some election law changes. There's an early voting constitutional amendment in Connecticut finally, and there's going to be a top five primary election amendment on the ballot in Nevada this year. We mentioned some of the other abortion amendments. There's also going to be two, one in California, one in Vermont, that will add abortion protections to the state constitution. Neither of those currently has that. And then there's other various and assorted fun things: an affirmative right to health care in Oregon, something that is relevant given how frequently Senate Republicans have fled the state in Oregon. An amendment that would ban absentee lawmakers from running for reelection. Medicaid expansion in South Dakota and right to work in Tennessee.
David Beard:
So you mentioned the initiative to create a lieutenant governor position in Arizona. Many states now have lieutenant governors, but that wasn't always the case. It's one of the more interesting creations of American politics since the creation of the country, and you've done a lot of research into that. So tell us about sort of the evolution of lieutenant governors, and if you think there's a best way to handle this position out of the many, many ways states do so.
Quinn Yeargain:
Yeah. There're a lot of very specific things that I've chosen to focus on or obsess over in the last few years and lieutenant governors are one of them just because it's kind of a fun role. It's only relevant in a handful of cases, really just for stepping in when the governor vacates for whatever reason. That's just kind of a fun idea to me that there's a position specifically just for that.
In many cases in many states, that's literally all that it does. It doesn't have any other constitutional responsibilities. And most states did not have lieutenant governors. I mean, most states did not even have popularly elected governors in 1776 when a lot of state constitutions were drafted or even in 1789, when the U.S. Constitution was ratified. That happened over time, but they didn't have lieutenant governors either. In most states, the president of the state Senate became governor if there was a vacancy and this triggered a lot of very silly questions like, well, the state Senate president is a temporary job technically. What if somebody else is elected state Senate president? What happens then if they're the acting governor?
Most state courts answering this question said, well, then the position of acting governor switches to the new Senate president, which is really weird and really chaotic. There's also the question, if the state Senate president is acting as governor, do they actually become governor? And the answer is no, they don't. Well, okay. Do they then stay as state Senate president? And in some cases, the answer is yes. And so all sorts of really weird questions resulting in really unsatisfactory succession procedures, ultimately, and they very, very slowly produce this gigantic increase in the number of lieutenant governors.
One of the weirdest things to me is that this was an innovation from the North in Southern constitutions during reconstruction. Southern constitutions were quite anti-democratic, unsurprisingly, before the Civil War. And so they didn't have lieutenant governors in most cases. When northerners came down and a lot of them were at these state constitutional conventions, they created lieutenant governors, sometimes copied and pasted from their home constitutions. The Democrats in these states hated lieutenant governors with a burning passion. They specifically amended their constitutions and got rid of lieutenant governors and unloaded them with a burning weird passion. And it was only when a lot of these states again had problems with succession that they were recreated and they've ultimately been recreated in every state that they've been abolished in.
So it's just one of these weird things that the history of it is extremely specific, has a lot of really weird stories, and it's just one of these facets of modern state government that we don't really think about all that much. In terms of a model procedure, I think that team ticket elections are better than not just because I can't really imagine in most cases that voters are really making a conscious decision of, “Okay, I'm going to elect a Democrat as governor and a Republican as lieutenant governor. So if the Democrat governor vacates, then a Republican becomes governor.” I'm not sure that's a choice that voters are making a lot of the time.
I think they're just—you have somebody like John Bel Edwards in Louisiana that voters really like, and there's nobody comparably like that at the lieutenant governor level running in that race. So I think team ticket elections are better. I think that the idea of having separate primaries is kind of weird. It's been called a shotgun wedding and I prefer to think of it as a double blind experiment where voters are choosing a running mate for a gubernatorial nominee they don't know.
And you can't really do that because if you're trying to balance something out, you can't if you don't know what you're trying to balance. Some of the arguments in opposition to creating team ticket elections when this first happened in the 50s and 60s was, well, it's just going to encourage gubernatorial nominees to pick somebody who's going to balance the ticket. And it's like, yeah, that's the whole point. That's exactly why you do that to ensure some sort of geographic diversity and now some sort of racial diversity or gender diversity or ideological diversity. So I think the idea of separate primaries is not good. Where I don't—and this is I realize far more specific than the question you were asking—where I don't have a clear answer myself is whether there should be a rule that gubernatorial candidates have to pick a running mate before the primary, or if they can do it after the primary.
David Nir:
So Quinn, one other area that your work touches on, particularly with regard to state constitutions, is of course redistricting. And there was an unusual situation that together we explored at Daily Kos Elections and yourself, regarding Montana, which somehow is going to finish out the year 2022 without adopting new legislative maps, even though of course every other state has produced new legislative maps because we got census data last year from the 2020 census. So what did you uncover with Montana? Why are they so weird? Why don't they have new maps?
Quinn Yeargain:
This is the dumbest shit. So when the Montana Constitution was amended in the 1970s, it created a redistricting commission to draw state legislative and congressional maps. This is a bipartisan commission that's selected from the majority and minority parties and the state legislature. And then they picked a theoretically independent fifth member. And so the way that it basically works is different for each of those two responsibilities that it has.
So congressional maps, super easy. It gets the census data. It draws the maps and it files them with the secretary of state, easy. With state legislative maps, there are a couple of things that are intersecting in really weird ways. The kicker is that the legislature has to have the opportunity to provide feedback on the maps. This feedback is totally gratuitous and the commission doesn't have to take it into account, but it still has to provide it. So the basic confines are as follows: The commission gets the data from the Census Bureau. It has to hold at least one public hearing. And then at the next regular session of the legislature, whatever the next regular session is, it gives its map proposal to the legislature, gets its feedback on the proposal, makes any modifications it wants to, and then files them with the secretary of state.
Now at no step in that process did I say anything that explicitly, like to people who are listening really carefully, necessarily requires that this happened on an off cycle. The problem though is that the Montana legislature's regular session is once every two years in odd-numbered years. So if the redistricting commission doesn't get the data from the Census Bureau until the legislature's regular session is over, then it has to wait until the next regular session to give the legislature its proposed map.
To provide a specific example, last year, the states got their data from the Census Bureau in August 2021. The only regular session that the Montana legislature will have from 2021 through the end of 2022 ended in spring of 2021. So it was too late to do anything. So it has to wait until spring of 2023 to give its legislature that proposed map, get any gratuitous feedback that the legislature wants to provide—which it can totally ignore—make any revisions, and then file them with the secretary of state for some sort of election in 2024.
David Nir:
Now, the maps that Montana is going to use this year are badly malapportioned. Some districts have too many people, some districts have too few people. This would seem to violate the well-settled constitutional provision of one person, one vote, particularly because we have new and better census data. Could someone have sued to force Montana to make new maps earlier?
Quinn Yeargain:
They totally could have. It's really kind of astounding that nobody did. This was litigated in Maine, for example, with respect to congressional districts, which Maine was theoretically operating on a similar cycle as Montana until 2011, 2013. And it's astounding that nobody sued because what do you really have to lose? If you're Democrats in Montana, why not do it? You're in a permanent ... Probably a permanent minority for a while, unless the state radically changes. Why not upend everything and force new elections with new maps this year, rather than relying on these malapportioned maps?
I think the real challenge is it's obviously too late to sue now, and it's not necessarily clear if in the aggregate, the map is unconstitutional. The typical standard used by the Supreme Court basically says that if there's 10% population deviation between the largest district and the smallest district, it's probably okay. And if it's greater than 10% deviation, it's probably not. With relevant context, adding color as necessary. But there is at least a plausible case that this was unconstitutional, that it is unconstitutional. That at a bare minimum, the elections taking place this year are unconstitutional, but obviously nothing happened. But I think that's my perpetual frustration. There is a lot of stuff that happens that arguably violates one person, one vote or basic principles of settled election law that just go totally uncontested. Like the fact that the Nebraska special congressional election last month happened under the new district boundaries instead of the old district boundaries. Illegal, clearly illegal, but nobody sued. I don't know why. If I were barred in Montana, I would sue on their behalf, but I'm not.
David Nir:
Now, as we've mentioned, state constitutions can be quite unusual documents. They can vary a lot. So is there any particular provision or amendment that you found in your research that is really, really strange or out there?
Quinn Yeargain:
So there're two that I think are particularly interesting or funny. One of the ones is from 1934, when the state of Louisiana added a map to its constitution. One of the amendments was about highway routes that it was paving. And rather than specify where the highway routes were, they drew a map and added it into the constitution to say this is where the highway routes should go. And it's 1934. So it's not a great map with a lot of detail. And that's how the routes had to be drawn, with this map that was in the constitution.
And I first saw this, not even when I was looking at specific amendments, I was looking at a dated Louisiana Constitution from some year. And I saw a map in there and I thought there's no way. That doesn't make any sense. But indeed, I went back, looked at the specific amendment and indeed it appended a map to the Louisiana Constitution.
David Nir:
I have to ask, why couldn't they just pass a law or regular statute saying build the roads here. Why did they have to amend their constitution to do that?
Quinn Yeargain:
I think asking why didn't the Louisiana legislature simply pass a law instead of a constitutional amendment is a great question that I really wish that they had asked themselves between the years of 1920 and 1970. There was one year, for example, when there were enough amendments added to the Louisiana Constitution that it added a whole 65 pages to its constitution. Longer than most state constitutions anyway, but it added that year alone, 34 amendments added 47,000 words. So it's a great question. A great question.
David Nir:
But one with no answer.
Quinn Yeargain:
One with no answer. The second amendment that I came across that I just ... I really thought I misunderstood it at first as an amendment to the Colorado Constitution in the 1970s that said that before any nuclear device is put into the ground and detonated, it has to have been put to the voters and gotten their approval. And my first gut reaction to that was what are you talking about? Like what on Earth are you talking about? Are you talking about the U.S. government getting permission from voters before it ... Does it test? Are you talking about the Soviets, like petitioning for an initiative measure before they bomb Pueblo? What are you talking about? And it's not about that at all. It's actually about using nuclear devices to shake loose gas that's in mineral formations in the state so that it can extract the gas, which has been done a few times apparently, and was not well received by Colorado voters understandably.
So they pass an amendment barring the detonation of nuclear devices. It's still in the Colorado Constitution. If you live there, I think it's article 25 or 26 of the Colorado Constitution. It's still there. So it's still the case. So I guess any would-be nuclear powers up there—if Kim Jong-un is listening, you have to get the voters’ approval before launching a nuclear attack in Colorado.
David Nir:
I would love to see that litigated in court one day. We have been talking with Quinn Yeargin, who is an assistant professor of law at Widener University Commonwealth Law School, long time DKE and SSP community member. Quinn, it has been fantastic having you on the program and I hope we can have you back to talk about some more of these state elections soon.
Quinn Yeargain:
Absolutely. Thanks so much for having me.
David Nir:
That's all from us this week. Thanks to Quinn Yeargain for joining us. The Downballot comes out every Thursday, everywhere you listen to podcasts. You can reach us by email at thedownballot@dailycoast.com. If you haven't already, please like and subscribe to The Downballot and leave us a five-star rating and review. Thanks to our producer, Cara Zelaya, and editor, Tim Einenkel. We'll be back next week with a new episode.