Analysis: Top Republicans in trouble in Kansas this election

Window on the West
by Mary Rupert

Voters may be tired of the barrage of negative campaign ads in Kansas, but it’s not likely that they will stop before the election, according to one knowledgeable observer.

As polls showed two key Republicans in the state were trailing in several polls, negative ads have been filling the Kansas airwaves.

Patrick Miller, assistant professor of political science at the University of Kansas, said other than two Republicans at the top of the ticket in Kansas being in trouble in the polls, there’s not a lot of unifying themes in the elections this year.

Looking at the averages of the polls, Miller said for the most part they are showing Democratic challenger Paul Davis leading Republican Gov. Sam Brownback by four to five points, while independent candidate Greg Orman is leading Republican Sen. Pat Roberts six to seven points. While there are some polls that show different results, Miller said he had some questions about some of those polls’ methodology. Recently, a CNN poll and a Fox news poll showed different results — closer races for the candidates.

The reasons for the two incumbents trailing are different, Miller said.

Governor’s race

Miller noted that there had been fairly regular polling on Brownback’s approval rating over time, and the first time he went into the negative job approval territory was November of 2011. “He’s been in negative territory ever since,” Miller said.

“He’s the fourth most unpopular governor in the country right now,” Miller said. “For Brownback to be polling this low is remarkable.”

Miller said he thinks what has been reflected in these polls is a public reaction to Brownback’s policies, particularly the tax issue and what happened to state revenues as a result of it. Also important were education spending and the debate about it. There was uncertainty in Kansas about job prospects and the quality of life, as well, he said.

The education issue has been interesting, with both candidates making contradictory claims. They are both accurate and telling the truth, Miller said, it’s just how they cut the numbers.

Davis has been focusing on looking at the cuts of state aid to classrooms. He said Brownback’s administration had the largest cut in state aid to classrooms in the state history. That is true, Miller said.

Brownback has come back and said he’s spending more on education than ever. That’s also true, Miller said. Brownback’s numbers include everything from new furniture for schools to interest paid for capital construction of schools. Including everything, education spending has gone up, he said.

“That’s something that may be confusing to voters,” he added. “Voters have heard a lot about education cuts.”

Voters already associate education cuts with Brownback, he said. This is an area where mainstream and centrist Republicans do not agree with more conservative elements of the Republican Party. “Good public schools are something they want to be associated with,” he said.

In the past few decades, the two parties have become more polarized, and those elected have tended to become more ideological as time goes on, he added.

“A year ago this had a potential to be a competitive race,” Miller said. “So it’s not surprising that he’s in a tough re-election. I think the story here is he’s overreached in terms of his policies, and I think that resonates if you look in election polling. About Kansas, we’re more a Republican than we are a conservative state. Kansas Republicans are more ideologically diverse than Republicans nationally.”

A negative ad about a strip club incident from 1998 came out about Davis this past month, but it has not dented Davis’s numbers, Miller believes. He added he could not see where that story and ad had hurt Davis. While some independent voters liked Davis less, it had not changed their vote intentions, as only about a 1 percent change could be seen in the polls, he added.

“This election isn’t about Paul Davis, this election is about Brownback,” Miller said. Polls are showing the public doesn’t like Brownback and the job he’s doing, he said. The polls show Kansans disapprove of the job Obama is doing more than Brownback, but they like Obama more than Brownback, he added.

“He’s a known quality that the public has passed a judgment on, and there are enough in the middle who are looking for an alternative and have made up their minds they don’t want to send him back to the governor’s mansion,” he said.

If re-elected, Brownback will most likely continue with his policies on taxation and education, Miller said. If Davis is elected, the big question will be the Legislature, Miller said, as Republicans hold super majorities in the Legislature. Individual legislators, for example, in Johnson County would face the question of what message were the voters sending? If enough Republicans backtrack on Brownback’s policies, Davis may be able to make policy changes. If not, they may just stonewall Davis for four years. Individual legislators would have to determine whether they would be at risk of being on the chopping block next.

The independent and centrist voters whose votes may sway, don’t like the incumbents, such as Obama and Brownback, and they don’t like politics this year, Miller noted. They’re looking for something new.

“Brownback has the hard-core conservative base, and ironically so does Roberts, even though he had the Tea Party challenge,” Miller said. “The middle has abandoned Brownback and Roberts and are looking for alternatives.”

While Brownback’s problem is ideological, and has to do with his conservative governing, Roberts’ problems are probably not ideological, Miller said.

U.S. Senate seat

“Roberts’ problem is his personal brand, there’s a sentiment that he’s out of touch,” Miller said.

In a governor’s race poll in October 2013, when everyone knew that Brownback was in trouble, 41 percent of Kansans had no opinion on Roberts’ job approval, Miller said.

“For a freshman senator new to D.C. that would be remarkable,” Miller said. “For Roberts, in office since 1996, that is just remarkable.”

Current polls show that the number who don’t have an opinion about Roberts is down to 20 percent, and job approval ratings have gone from net positive to net negative, he said. The disapproval rate is 17 points higher than the approval rate.

“If Roberts wins this election, he will be the most unpopular senator in the last three cycles to actually win a race,” Miller said, adding that was a reference to the entire Senate.

“Roberts’ issue is his personal brand,” Miller said. Whatever he has done for Kansas, voters are not seeing it. There’s an issue with voters’ perception that he doesn’t live in Kansas, an issue that came up in the primary election concerning his primary address, a rental property in Dodge City.

Miller also believes that when the Roberts campaign rested for about a month after the primary, it gave an opening to the Orman campaign to move forward. It’s Miller’s opinion that Democrat Chad Taylor, who dropped out of the race, didn’t have much money, and was hoping that primary challenger Milton Wolf would win against Roberts.

Orman was doing better in the polls, and also had more campaign funding available. Orman has exploited the weaknesses in the incumbent’s campaign, Miller believes.

“His image resonated with dissatisfied voters in Kansas, who are also dissatisfied with Brownback,” Miller said. “They don’t like incumbents, and don’t like Roberts.”

Over a half-million dollars in negative ads attacking Orman and portraying him as a liberal Democrat haven’t moved the polls, Miller said.

“For me, the bottom line is undecideds don’t like either of the incumbents and they are in demographic groups leaning to Davis and Orman right now,” Miller said.

At this point, Miller said he doesn’t know of any issues for either candidate that could change this. He believes the strongest negative issues have already been brought forth in advertising, the strip club attack ad and the closet Democrat attack ad.

Usually, 90 percent of a party’s members vote for their party’s candidate. In this election, according to current polls, both Davis and Orman are getting 30 percent of the Republican vote, he said.

Campaign finance reports in the Roberts-Orman race indicate that a half-million has been spent by outside Republican groups to attack Orman since the primary ended, and about $1 million to support Roberts. Orman probably will not get much outside funding, so the question is whether Orman will start self-funding, Miller said.

“If voters have made up their minds, a lot of outside spending is not going to get them to change their minds,” Miller believes. He does expect negative advertising to continue until the election.

U.S. House, 3rd District
Voter dissatisfaction with two top Republicans may not have spread to the 3rd District race.

Miller said the contest for the U.S. House, 3rd District, between incumbent Republican Rep. Kevin Yoder and Democrat Kelly Kultala is more difficult to get a clear picture of since there has not been that much independent polling. Most of the polls are from the candidates themselves.

“Kelly Kultala had a series of polls showing her getting closer to Yoder, who had an 8-point lead in July in one of her polls,” Miller said. He added he always wants to see candidate polls supplemented with outside polling, and he has not seen any outside polling for the 3rd District.

Kultala has made some waves with her attack ad on Yoder, he said. The negative ad pictured a swimming pool and made a reference to a skinny-dipping incident in Yoder’s past, while discussing how funds have been stripped from certain programs.

Miller said this 3rd District contest is a question mark for him. He hasn’t seen a lot coming from Yoder in ads, which may mean the incumbent thinks he’s secure and might not take risks.

Brady Center challenges constitutionality of Kansas gun law

Today the Brady Center to Prevent Gun Violence will file a federal lawsuit against the state of Kansas to strike down and stop enforcement of its law that declares guns made and kept in Kansas are exempt from federal gun laws and makes federal regulation of Kansas-made guns a felony, according to a news release.

The complaint, filed today in the U.S. District Court in Kansas, argues the “Second Amendment Protection Act,” enacted in 2013, is unconstitutional and should be struck down. People say that nowadays, gun detection is more important than gun laws. This is why a gun detection System has been developed that can detect guns through a camera and alert the owner through an app, the technology is growing and will become more mainstream over the coming years.

The lawsuit requests that a trial be held in U.S. District Court in Kansas City, Kan. Several Kansas residents, mostly from Johnson County, are referenced in the lawsuit. The lawsuit also makes a reference to a recent shooting at the parking lot of the Jewish Community Center in Overland Park.

“Courts have recognized for years that states cannot just declare ‘null and void’ federal laws they do not like or wish to enforce,” said Jonathan Lowy, director, Legal Action Project, Brady Center to Prevent Gun Violence. “Just as Southern states were not allowed to opt-out of federal civil rights laws, the Constitution does not allow Kansas or any other state to nullify federal gun laws that protect Kansans and all Americans from gun violence,” Lowy said.

Kansas Attorney General Derek Schmidt responded to the lawsuit.

“We will defend this duly enacted Kansas law that was intended by the Legislature to safeguard Kansans’ rights under the Second and Tenth Amendments to the United States Constitution,” Schmidt said in a news release. “This law has been in effect, unchanged, for more than a year, and the timing and tone of this election-year lawsuit are obviously political. We are reviewing the complaint and will respond in due course and in the proper legal forum.”

Gov. Sam Brownback issued a statement in response to the lawsuit.

“As I have said previously, the right to keep and bear arms is a right that Kansans hold dear. It is a right enshrined not only in the Second Amendment to the United States Constitution, but also protected by the Kansas Bill of Rights,” Gov. Brownback said in the statement. “The people of Kansas have repeatedly and overwhelmingly reaffirmed their commitment to protecting this fundamental right. The people of Kansas are likewise committed to defending the sovereignty of the State of Kansas as guaranteed in the Ninth and Tenth Amendments to the United States Constitution.

“The Obama administration attacked this legislation when I signed it more than one year ago. It now appears that they have found some Washington, D.C., lawyers to do their bidding. We will vigorously defend the rights of Kansans in this litigation.”

The Brady Center stated that if enforced, this law would have drastic and dire consequences for Kansas residents.

It could allow some federally prohibited people to buy and possess guns, prohibit federal background checks for gun purchases and allow the unlicensed manufacturing of firearms in Kansas, including guns designed to evade metal detectors and airport security screenings, according to the Brady Center. The law could also cripple investigations of gun trafficking and illegal gun sales, the center stated.

“Kansas’ gun nullification law is not just bad public policy, it is patently unconstitutional,” Lowy said.

According to the complaint, the Act is unconstitutional because it violates the Supremacy Clause, which declares that federal law is supreme and gives final power to interpret the Constitution to federal courts, not state legislatures. The complaint also argues that federal regulation of firearms is permitted by the Commerce Clause and that the law’s prohibitions on enforcing federal gun laws violates Kansas citizens’ due process because the law is “unconstitutionally” vague.

Further, the U.S. Supreme Court ruled in 1958 that any and all state laws claiming to nullify federal law are unconstitutional, as states had attempted to circumvent federal desegregation mandates.

As detailed in the complaint, “Nullification has never been upheld and instead has been squarely rejected by the courts under fundamental principles of constitutional law.”

“We are confident the Court will agree that this law is unconstitutional,” Lowy said.

“The statute is remarkable for its complete disregard of basic and long-established principles of constitutional law,” said Stuart Plunkett, partner, Morrison and Foerster and co-counsel in the Brady Campaign to Prevent Gun Violence v. Brownback.

“Our legal system would quickly break down if each of the 50 states were permitted to choose whether or not to follow federal law,” Plunkett said. “The Kansas law is also remarkable for its attempt to resurrect a legal theory from the desegregation and pre-Civil War areas that has been squarely and repeatedly rejected by the United States Supreme Court.”

The complaint was filed on behalf of the Brady Campaign to Prevent Gun Violence and its Kansas membership, and names Gov. Sam Brownback and Attorney General Derek Schmidt as defendants. The suit seeks a ruling that the law is unconstitutional and a permanent injunction blocking its enforcement.

The Brady Center has successfully brought lawsuits that have blocked or struck down other gun laws, including a Florida law that prevented doctors from discussing firearms with patients and a Georgia city ordinance that mandated firearm ownership in all households. The Brady Center also prepared to file a lawsuit in 2013 against Missouri for a similar law that nullified federal gun laws, but that law was vetoed by Governor Nixon. The Brady Center is also suing New Jersey for compliance of its law on “smart gun” technology.

A copy of the complaint Is online at