Tangle - The Kansas abortion vote.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

The Kansas abortion referendum. Plus, a question about expanding the House of Representatives.

Photo by Ian Hutchinson / Unsplash

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Quick hits.

1. The U.S. Senate voted to approve an expansion of NATO to include Finland and Sweden. The vote was 95-1, with only Sen. Josh Hawley (R-MO) voting against the measure. (The vote)
2. Russian prosecutors asked a Moscow court to sentence WNBA star Brittney Griner to nine years in prison after she was found guilty of drug possession and smuggling. (The request)
3. Five Chinese missiles landed in Japan's exclusive economic zone (EEZ), an area that extends 200 nautical miles off Japan's coast. (The missiles)
4. Representative Jackie Walorski (R-IN) died in a car accident, along with two of her aides and one other unknown person. (The tragedy)
5. Eleven golfers from the newly launched LIV tour filed antitrust lawsuits against the PGA tour. The golfers (including Phil Mickelson) were banned from PGA tour events after joining the Saudi-backed rival league. (The lawsuit)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.

Today's topic.

The Kansas abortion vote. On Tuesday, Kansas voters rejected a referendum on an amendment to remove the right to abortion from the State Constitution. The 59-41 margin to preserve abortion rights in one of the more conservative states in the U.S. was a surprise to many political strategists who were unsure where Kansas voters would fall. It was the first time since Roe v. Wade was struck down that voters got a chance to voice their opinion on abortion rights.

The amendment, called Value Them Both, was an attempt to overturn the 2019 Kansas Supreme Court decision in Hodes & Nauser v. Schmidt, which declared that the state constitution guarantees a fundamental right to abortion. Currently, abortion is legal in Kansas  up to 22 weeks into pregnancy. The referendum would not have made abortion illegal, but it would have removed any barriers on how far the state legislature could go in limiting when and where abortions were allowed. The measure had been placed on the ballot before Roe v. Wade was struck down, but took on increased importance and attention after the Dobbs ruling earlier this summer.

The referendum attracted strong national interest outside of Kansas not only because political strategists were curious to see what voters would decide, but also because Kansas sits between several states that have strict abortion bans in place — making it a haven for some women who need to travel across state lines to seek out abortions. One clinic in Wichita has reported a 60 percent increase in out-of-state patients since last year. Over $12 million was spent on advertising in the race, split about evenly between the two sides.

Turnout for the measure, which coincided with Tuesday's midterms, was huge. The Republican secretary of state predicted about 36% of voters would participate, but real turnout appears closer to 50%. Some 908,000 voters cast ballots in the referendum, compared to 473,000 who voted in the 2018 midterm primaries.

While the state is reliably conservative — former President Trump won by 15% there in 2020 — it has had its blips of blue. In 2018, for instance, Kansas voters elected Democrat Laura Kelly as governor over her staunch conservative opponent Kris Kobach. According to the New York Times, an analysis of the Kansas results suggests 4 out of 5 states would vote similarly on an abortion referendum, and about 65% of voters nationwide would reject removing abortion rights from their state constitutions.

Naturally, this election has caused a lot of commentary on this very divisive issue. In our past coverage of abortion, we have discussed the legal rulings around Roe v. Wade and Planned Parenthood v. Casey, moral arguments about abortion, the history of abortion and more.

Today, we are going to focus on this vote in Kansas and what it may mean for the nation as a whole.

What the left is saying.

• The left celebrates the victory, arguing that the pro-choice side overcame a lot of obstacles.
• Some call out deception from anti-abortion groups.
• Others say this vote never should have been necessary, and warn that pro-life groups won't give up.

In The New York Times, Sarah Smarsh wrote about why the defense of abortion rights in Kansas is "so powerful."

"In a state where registered Republicans far outnumber Democrats, the results reveal that conservative politicians bent on controlling women and pregnant people with draconian abortion bans are out of step with their electorates, a majority of whom are capable of nuance often concealed by our two-party system," Smarsh wrote. "This is not news to many red-state moderates and progressives, who live with excruciating awareness of the gulf between their decent communities and the far-right extremists gerrymandering, voter-suppressing and dark-moneying their way into state and local office. Too often, election results say more about the conditions of the franchise — who manages to access it, and what information or misinformation they receive along the way — than they do about the character of a place.

"The anti-abortion side used confusing language in the amendment, which suggested a yes vote would ban taxpayer funding of abortions — a ban that already exists — or allow for laws protecting victims of rape and incest, who already have legal access to abortion," she added. "They insisted they had no designs on passing a total ban on abortion, but The Kansas Reflector obtained audio from a meeting in which a state senator and amendment advocate promised to attempt to pass just such a ban. On top of that, the day before the election, Kansas voters received deceptive texts to vote yes to preserve 'choice,' confusing untold numbers of voters. With this atmosphere in mind, alongside polls that were way off-target, cynical pundits and hopeful abortion rights supporters alike were stunned by the extent of the amendment’s failure — a nearly 18-percentage point margin, with 95 percent of votes tallied — in an initiative some predicted would require days or even weeks of counting and recounting in order to call."

The Kansas City Star editorial board called it a "stunning display of common sense."

"First, and most important, it was a victory for women," the board said. "Kansans said in a loud, unmistakable voice that women can and should be trusted with the most intimate questions of their own health and safety. It was also a victory for voters, who defied predictions of a low turnout and cast ballots in churches, gyms, city halls and community centers. Many voted early. Voters were able to dissect puzzling ballot language, purposely designed to confuse and intimidate. They rejected false nonsense from anti-abortion groups, including several ludicrous attempts to link the vote to so-called critical race theory, or defunding police. A last-minute text message, apparently authorized by a group run by former U.S. Rep. Tim Huelskamp, was quickly disregarded as a bald-faced lie.

"Tuesday was also a victory for Kansans who oppose heavy-handed government intervention in private decisions," it added. "In 2019, the Kansas Supreme Court said a woman’s right to choose abortion is inalienable — it cannot be taken away. It was the right decision. In 2022, Kansas voters overwhelmingly endorsed that view. In a normal environment, opponents of abortion rights would take 'no' for an answer. Don’t count on it. We fully expect state lawmakers to push anti-choice bills next year, particularly if a Republican is elected governor... While deeply satisfying, Tuesday’s victory should not be a reason for gloating, or pointing fingers. Abortion remains difficult, divisive and morally difficult. That’s the main reason government should stay out of the decision-making process for women."

In CNN, Jill Filipovic said the vote should never have happened in the first place.

"It's tempting to look at the outcome of this election and draw sweeping conclusions about America's appetite for -- or rejection of -- abortion restrictions," Filipovic wrote. "The truth is, Americans overwhelmingly did not want to see Roe v. Wade overturned and are generally pro-choice, but when you drill down, people have all kinds of opinions on how, whether and when abortion should be regulated -- whether it should be legal in cases of rape or incest; whether it should be legal if a woman is too poor to support a child; whether it should be legal after the first trimester.

"These are all the wrong questions," she said. "Fundamental rights -- and it doesn't get more fundamental than sovereignty over one's own body -- should not be up for a vote, even if the righteous side is likely to win. This is a foundational principle in the United States: That while voters should be able to pick their president and their representatives in Congress and at the state level, and have the power to vote on various state-level laws, our Constitution protects the rights of minority and other historically mistreated groups as well. No one should see their basic rights subject to the tyranny of the majority."

What the right is saying.

• The right said the vote is a tough defeat, but cautions not to read too much into it.
• Many say this is exactly how the system should work, which is why the Supreme Court ruled as it did.
• Others argue the vote was influenced by outside money and the left's deception.

In National Review, Ramesh Ponnuru cautioned about looking too much into the results.

"Kansas (where I grew up) is by no means a pro-life state, but it would probably never have adopted a sweeping abortion-protective constitutional amendment by popular vote," Ponnuru wrote. "Once the state’s high court effectively amended the state constitution by itself, though, dislodging its mini-Roe by referendum became — as the result suggests — impossible. That it didn’t work really shouldn’t be surprising. If we held national referenda, one on abolishing Roe in favor of some policy regime TBD would almost certainly have lost in most states. Pro-lifers by and large understood that the polls in favor of Roe didn’t mean Americans were deeply committed to an abortion regime as expansive as the one Roe actually entailed.

"The result is bad news, but supporters of the abortion license are giddily overreading it," he added. "The instant line is that the result shows that a backlash to Dobbs will be powerful this November. And it’s true that the referendum appears to have driven turnout in the state. This suggests to me a few potential advantages for pro-abortion Democrats this fall. They can do very well in places where a pro-life referendum is on the ballot, especially one that can be presented as effectively banning abortion without exceptions for pregnancies resulting from rape; and maybe also in some places where legislators are on the verge of enacting such bans (or can be presented as being on the verge of it). Will they be as successful in turning out their vote in the many places where those conditions are not present? Tuesday night’s result in Kansas will yield Democratic confidence about the answer to that question. It could turn out to be overconfidence."

The New York Post editorial board said the vote is proof of exactly what the Supreme Court said: Abortion should be an issue handled by the states.

"This was what the justices expected in tossing Roe: not banning abortion, but letting Americans decide for themselves what restrictions on it they want in their states," the board wrote. "Many pro-choice activists have pretended Dobbs bans abortion, yet the justices merely found that nothing in the US Constitution forces states to permit the procedure. Indeed, it was Roe — citing an elusive constitutional right to abortion (backed by a later ruling, Casey) — that sought to impose unilateral rules on every state, the very opposite of democratic. Yes, some states will now maintain tough restrictions on abortion; but others, like deep-blue New York, are extremely liberal on the issue.

"And now even Kansas (again, a right-leaning state) has re-affirmed a right to the procedure. That’s democracy at work, and it completely vindicates Dobbs," the board said. “So much for activists’ handwringing over the supposed loss of not just abortion rights but democracy itself. So much for the militant pro-choice crowd’s ugly threats of violence: the California man who sought to kill Justice Brett Kavanaugh (and two other conservative justices). Team Biden’s encouragement of illegal protests outside justices’ homes. The left’s vile and racist attacks on Justice Clarence Thomas. These are the people who truly want to snuff out democracy and impose their views on all of us. Pro-lifers may be disappointed by the Kansas vote, but every American should be proud that it showed democracy alive and well in the United States."

In The Federalist, Margot Cleveland said it was deception and out-of-state money that drove the pro-abortion victory.

"While abortion activists and their apologists in the leftist media will claim that the 59 percent of voters saying 'no' to the ballot measure, to a mere 39 percent of 'yes' votes, proves the public disagrees with the reversal of Roe v. Wade and Planned Parenthood v. Casey. But the millions spent by out-of-state leftist groups, coupled with the massive misrepresentation of the amendment, make such conclusions suspect," she wrote. "In the last half-year, more than 70 percent of the $6.54 million raised by the lead group campaigning against the amendment came from outsiders, compared to less than 1 percent of the $4.69 million donated by out-of-staters to the Value Them Both campaign.

"With a nearly $2 million cash advantage, outsiders succeeded in flooding Kansas with deceptive claims about the Value Them Both amendment, an amendment which, quite simply, would have returned the right to regulate abortions to the state legislature," she said. "In pushing Kansans to vote 'no' to the amendment, the abortion activists inaccurately claimed: 'The Legislature currently has the power to [im]pose limits on abortion. To date, there are dozens of restrictions. What the Legislature can’t do is ban the procedure, as the Kansas Constitution currently guarantees access.' In reality, the Hodes decision created a 'fundamental right to abortion' under the Kansas constitution that surpassed the right previously guaranteed under Roe and Casey. And those dozens of restrictions on the books cannot withstand the strict scrutiny the Kansas Supreme Court established for judging regulations affecting abortions, including many passed with bipartisan support."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.

If you had asked me a week ago what I thought was going to happen, I would have predicted this outcome — but by a much tighter margin, and with a very low degree of confidence.

The race, in nearly every way, was not particularly clean. Margot Cleveland is right that the pro-choice side misrepresented the stakes with some of their rhetoric and got a load of help from out-of-state money. But it's surprising the amendment failed given how far some folks on the anti-abortion side went to win the vote.

The reality of the situation is that Kansas is a weird in-between state: While there are limits on abortion, there is also a 2019 state Supreme Court ruling that could feasibly strike some of those limits down. If this referendum had passed, it would have made that ruling obsolete; and it would have opened the door for strict abortion bans across the state, which legislators (privately) seemed keen on executing.

And to muddy the waters to get there, the pro-life side definitely played dirty. One conservative group sent out text messages on the day of the vote that read: "Women in KS are losing their choice on reproductive rights. Voting YES on the Amendment will give women a choice. Vote YES to protect women's health." This is "pro-choice" language hidden inside a message from a pro-life group intended to get pro-choice people to vote their way.

The language of the amendment, which was drafted by the anti-abortion side, was also intentionally misleading. For example, the ballot said a "yes" vote would "affirm there is no constitutional right to abortion" when a yes vote would really change the Kansas constitution to remove the right to an abortion. It also explains what exceptions an abortion ban could have (like pregnancies resulting from rape or incest) in a way that makes it seem like voting "yes" would preserve those exceptions — when in reality, voting yes would have allowed the state legislature to eliminate all exceptions if it chose.

Despite some of this deception, and the general confusion and expected politicking, I do think there is something to learn here. For starters, I think it's clear the pro-life groups and many of the legislators they support are more extreme on abortion restrictions than most voters. Even in some of the most conservative counties in Kansas — like Osage County, where Trump won 71% of the vote — 56% of voters rejected the amendment. Perhaps those voters don't think about their vote as supporting a "constitutional right to abortion," but I think it's reasonable to understand their vote as limiting the government’s control over citizens’ personal decisions.

Of course, that’s a very traditionally conservative position to take, as I’ve said. I believe Kansas voters rejected this amendment in part because activists won over many conservatives by framing it clearly as an individual rights and liberty vote, one cast to keep the government out of such decisions.

Can this formula be replicated elsewhere? It's really hard to say. For all the talk of the conservative bonafides in Kansas, it is a unique state that currently has a female Democratic governor and a lot of political quirks other states don't have. I always suspected the reality of Roe falling would result in only a handful of states with very strict abortion limits, a plurality of states with looser restrictions, and another handful of states with very few restrictions. This vote helps affirm that suspicion.

As for what this tells us about how Roe v. Wade falling will impact the midterms, I think the single most important impact is on turnout. Kansas voters far exceeded turnout expectations, nearly hitting general election midterm levels in a primary race. Given that the midterm advantage is almost always with the party out of power, because it’s easier to rile up your base to vote in a non-presidential election when the person you hate is in the White House, it’s possible such a dynamic will end up favoring Democrats. If nothing else, what happened in Kansas supports the narrative that the issue of abortion could drive major turnout for Democrats in a midterm cycle where they otherwise look dead in the water. We'll see if that pans out, but it's certainly a new wrinkle worth keeping an eye on.

Your questions, answered.

Q: The founders original vision was to have 1 representative for every 50,000 citizens. We now have one person representing almost a million people in the House of Representatives. Is there any movement to expand the size of the US House and add more representatives? More representatives mean people’s voices can be better heard and could cut down on gerrymandering issues too. It seems strange the size of the House has been frozen for 100 years. Other countries have much larger representative bodies. Why not expand the House, and make more seats at the table?

— Nathan, California

Tangle: There is a big time movement for this! In 2018, The New York Times did an entire series advocating this change (they wanted to add 158 seats). "Our Common Purpose" from the American Academy of Arts and Sciences has done a ton of work advocating House expansion, too. You can check out their website here, which is pretty interesting. According to their numbers, the average House district today has about 770,000 people, compared to 35,000 in 1790. The number of representatives grew from 65 (in 1790) to 435 (in 1913), but that number was capped in 1929.

Frankly, I think there are a lot of very good arguments for expanding the House. Perhaps the best one is that studies have shown Americans from smaller districts feel better represented by their members. Most Americans, though, feel totally disconnected from the people who are supposed to be representing them at the federal level.

This size issue also protects incumbents. Because running in larger districts (which, now, most districts are) is so expensive, challengers need way more money to reach all 770,000 or more constituents. That makes name recognition, advertising, and funding paramount to winning, which helps people who currently hold office even if they are bad at their jobs.

There are some cheeky but cogent counterpoints, too — like the argument that more politicians is the last thing America needs. But there are other good arguments not to expand, too: For instance, the more members, the more diluted any single representative's power is, meaning the less influence that one district would have nationally. The House is also already very big and very dysfunctional, and it's hard to imagine adding more representatives would help resolve that. There are a lot of good arguments on both sides here, but this is absolutely a debate that's happening now.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.

A story that matters.

The Transportation Department has proposed stricter rules on when major airlines will have to refund passengers for delays and cancellations. Currently, air travelers are entitled to refunds if their flights are canceled or significantly delayed, but the agency had not defined what constituted a significant change. Passengers are now eligible for cash refunds when their flight is delayed by three hours (domestic) or six hours (international), and it doesn't matter if it was a non-refundable ticket. The new rules would also require airlines to provide non-expiring vouchers for passengers who can't travel if they get sick or if borders are closed due to the pandemic. Transportation Secretary Pete Buttigieg has publicly criticized airlines for their delays and cancellations during the pandemic. The rules will be open for public comment for 90 days before going into effect. CNBC has the story.

Numbers.

• 47%. The percentage of likely voters who said they were going to vote for the amendment in late July, according to a coeffecient poll.
• 43%. The percentage of likely voters who said they were going to vote against the amendment in late July, according to a coeffecient poll.
• 41.2%. The percentage of voters who ultimately voted for the amendment.
• 58.8%. The percentage of voters who ultimately voted against the amendment.
• Three. The number of U.S. House members who have now died this year.
• Fifth. The rank, in length of U.S. rivers, of the Rio Grande, which went dry in Albuquerque, New Mexico, this week.

Have a nice day.

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