Kansas: Democracy Through Difficulties in the Nation’s Crossroads

Democracies across the world are in peril, and they are here at home, too.  In their book How Democracies Die, Ziblatt and Levitsky identify two hallmarks of stable democracies: mutual tolerance (the understanding that political rivals are legitimate) and forbearance (the restraint in exercising political power).  These have certainly been violated in recent years at the national level, most dramatically in the January 6th 2021 uprising.

How robust is democracy within the states?  In Kansas, there are distinct hallmarks of the same threats for democratic backsliding observed elsewhere.  In what follows, I explain four areas where there is reason for concern, but also some aspects for optimism, focusing on the themes of mutual tolerance and forbearance that were identified by Ziblatt and Levitsky.

Mutual tolerance suggests that your political rivals are legitimate, and that they have the same opportunities of participating in the political sphere as your supporters do.  If there is no mutual tolerance – no willingness to play the game if it’s possible the other side can win, as it were – the notion of democracy fundamentally falls apart.  

How has Kansas fared with respect to the norms of mutual tolerance?  Here are two aspects to examine: opportunities for citizens to vote, and opportunities for voters to participate in competitive elections.

Opportunities for Citizens to Vote

Former Kansas Attorney General Kris Kobach has been called the “premier advocate of vote suppression” and under his guidance, Kansas restricted voter registration more than any other state in the country.  He did so under the pretense of tamping down on voter fraud, but as documented by the Heritage Foundation, the rates of voter fraud are low, and the impact on elections is very nearly nil.  By contrast, the restrictions placed on the franchise have systematically discouraged turnout by Democratic leaning low-income minority voters.  

What does this have to do with the norms of mutual tolerance?  Mutual tolerance requires allowing all voters – independent of support – equal opportunity to participate in the polls.  However, voter ID laws and other such restrictions systematically influence Democratic leaning low income and minority voters, who are less likely to have appropriate documentation than the more affluent Republican leaning voters.  Placing a partisan thumb on the scale of elections violates the norm of mutual tolerance, and a strikingly undemocratic attempt.

One slight reason for optimism here: the Federal Courts ruled against Kobach’s restrictions in 2020, and while Secretary of State Scott Schwab supported the policies as a legislator, and appealed the ruling as Secretary of State, he has complied with it.  

Opportunities for Voters to Participate in Competitive Elections

In Kansas, relatively few voters are fortunate enough to vote in legislative elections that are competitive.  Competitive elections represent a willingness to allow for mutual tolerance because they indicate whoever drew the district lines were interested in fair play, and unlikely to press their advantage by stacking the deck to protect an entrenched majority.  As competitive elections go down, the number of voters who can meaningfully participate in the democratic process goes down as well.

In 2020, 34% of all state legislative districts were uncontested, meaning that there was no candidate running against the incumbent at all.   So, one-third of all Kansans were unable to influence the outcome of the state legislative elections no matter what they wanted to do.   Of the remaining seats for the state legislature, only 23 were competitive (that is, the winner received less than 60% of the vote).  

All told, 34% of Kansas had no choice in who their representative was by having an uncontested election.  Another 48% of Kansas had elections with two candidates, but the districts were so lopsided that the winner was all but assured.  Only 18% of Kansans had the privilege of voting in an election where their votes would hold the legislators accountable.  

How does this influence the idea of mutual toleration, and the shortcomings there?  When the majority party is firmly entrenched in the legislature and oversees the drawing of its own electoral maps for the upcoming districting cycle, it has the opportunity allow the minority party to engage in the process orshut them out.  In this case, while the Republican legislature has a legitimate advantage in this right-leaning state, through the redistricting process that has yielded so few competitive districts, they have effectively cemented their status as the permanent majority before the elections have even taken place.

Forbearance is the idea that while the law may allow a particular political action, it violates the spirit of the law and political fair play.  For example, while would be legal – and indeed popular among many—for Congress to expand the size of the US Supreme Court in reaction to recent rulings, Congress is exercising forbearance by not doing so.  

How has Kansas fared in upholding the norms of forbearance?  I detail a recent case involving the state legislature’s interaction with the governor that indicates a failure to uphold the norm of forbearance.

In the early days of the COVID-19 pandemic, Governor Laura Kelly declared a state of emergency, and issued a series of public safety policies, including crowd size limits and closingpublic schools, bars, restaurants, and non-essential businesses. These policies were slightly less restrictive than the median of “strictness” of those passed by governors in other states, and were roughly consistent with the policies of Alabama Governor Kay Ivey. The logic for executives acting decisively in a crisis dates back at least as far as Federalist Paper No. 70, where Alexander Hamilton writes the executive needs “decision, activity...and dispatch.”

The Kansas legislature responded in a surprising manner, however, passing a number of bills restricting the authority of the governor to declare states of emergency, and allows the legislature to revoke all proclamations passed by the governor (Ivey was not subject to these same backlash bills).

What does this have to do with forbearance?  The legislature permanently changed the rules of the game for how states of emergency will be declared in Kansas, forever weakening the executive branch and expanding the power of the legislative branch.  Given the security of the Republican majority in the legislature, it all but assures that future declarations of emergency - well after Laura Kelly’s tenure – will not be based on what is an objective emergency, but what a majority of the Republicans in the state legislature deem it to be.  

In this column, I also promised to provide some optimism.  Ziblatt and Levitsky’s book not only outlines the necessary norms for maintaining a democracy, it also helps provide a way of identifying when a politician demonstrates authoritarian tendencies.  Kris Kobach, mentioned above, fits this mold well.  He promotes ideas of white nationalism, he has gotten rich defrauding local communities, and he has repeatedly undermined confidence in the electoral process.  And in 2018, he narrowly beat Lt. Governor Jeff Colyer for the Republican Nomination for Governor.  

So, what’s the good news here?  Well, in the 2018 General Election, Kris Kobach lost to Democrat Laura Kelly. Furthermore, he was the only Republican to lose in statewide elections: all other statewide races – Secretary of State, Attorney General, Insurance Commissioner, etc. – were won by Republicans.  A sizeable group of Kansas voters crossed party lines and voted against their party’s candidate because of the threat he posed to the democratic process.  Going forward, to prevent additional backsliding, Kansans will have to continue this vigilance, and be willing to make some accommodations to protect democracy.  If they act like they did in the 2018 gubernatorial election, there’s reason for hope.