Bernie:

State attorneys general, once little known officials, have emerged as legal and political juggernauts across the country. They make headlines every single day and they continue to grow in power and influence. As their states’ chief legal officers, AGs wield broad authority to investigate virtually any business practice across every single industry. Every company, including yours, that hires employees, makes or markets a product or service, interfaces with consumers, or contracts with the government may be, and likely will be, subject to scrutiny by an AG. If your company fits into one of those categories, and every one does, this podcast is definitely for you.

Lori:

Welcome to State AG Pulse, presented by Cozen O’Connor’s State AG Group and proudly hosted by Bernie Nash.

Bernie:

That’s me.

Lori:

And Lori Kalani, and that’s me. State AG Pulse is a limited series podcast that will leverage our decades of experience to help business leaders navigate the upcoming 2022 State AG elections and understand and manage the related opportunities and risks.

Lori:

Now let’s jump right into this week’s episode.

Bernie:

Welcome everyone to episode 11 of the State AG Pulse, brought to you by Cozen O’Connor’s State Attorney General Practice Group. To our regulars, I sure hope you missed Lori and I last week, because we missed being with you. And if you have not missed us, then we will bring Paul and Jerry back next week. For today, we have a special guest, our partner, Meghan Stoppel, former head of consumer protection, both in the great state of Nebraska and in Kansas, and you may well remember Meghan from her joining us when we discussed the Nebraska race. So welcome back, Meghan.

Meghan:

Thank you, Bernie. Nice to be here.

Bernie:

Glad to have you again, as you know. So, last week, Lori and I couldn’t make it for different reasons, and you heard our distinguished colleagues Paul Connell and Jerry Kilgore make a prediction. I’ve been shying away from difficult predictions, I’ve stayed only with safe predictions. So they predicted Dawn Grove would win in a very multi-candidate race and I concur with that prediction, I do believe Dawn will win. I think it’s going to be a tight race, but I think she’s going pull it out. But I am not prepared to predict whether Dawn can beat the Democratic opponent in the general. Let’s just talk about Kansas, which is what we’re here to talk about. For the first time in 12 years there’s going to be a new attorney general, Derek Schmidt, who served, will have completed serving three terms, is running for governor, and I predict that Derek Schmidt will become the next governor of Kansas. Now, with respect to the AG race, that’s a real tight one.

Lori:

Bernie, can I just say there’s another safe prediction you’re making. You’re on a roll with your safe predictions, so keep it up. Go ahead.

Bernie:

Thank you for chiding me and keeping me alert. I’m going to disappoint you, Lori, because I am going to make a difficult prediction on the Kansas race. There are three candidates running for the Republican right to run in the general, and there’s one Democrat. The one Democrat is Chris Mann. The three candidates running for the Republican primary are: one person who many of you know, Kris Kobach, he’s run twice before and was defeated twice before in Kansas. Now, the other two Republicans running are Tony Mattivi and Kellie Warren. And I would say both are considered moderates compared to Kris Kobach. So if in fact they split the moderate vote, then Kris Kobach could well be the Republican candidate. My prediction, however, is Kris has run so often and is so well known to be out on the fringes, and some Kansans will like that, but more importantly than being what he stands for, they want a Republican to win. So my prediction is that Kris Kobach will not win, and that Kellie Warren will be the Republican candidate, and she will then be the next attorney general.

Lori:

Bernie, what we should mention is that this is a winner-takes-all primary, so there won’t be a situation where there’ll be a runoff. I’d love Meghan’s thoughts on whether she thinks your prediction is right, but again, I think that really, that sorts out the field a little bit, because if this were a runoff state it may be a little different. But Meghan, your thoughts.

Meghan:

Thank you, Lori. I completely agree, Lori, that because this is a winner-take-all primary and there is no chance of a runoff here in Kansas, this is going to be a really difficult race, I think, for pundits to predict, for a couple of reasons, one of which being that, there are three what I would consider to be really strong candidates in the Republican field. For various reasons, I think they all bring different strengths to the table. Kris Kobach brings incredible name recognition. He also brings some very high profile endorsements to the table. I do think he’s going to, if you look at the turnout, probably in the primary in the Western half of the state, or even the Western two thirds of the state, I think you’re going to see sort of a Kobach wave. But what’s really going to, I think, win the day when it comes to the Republican primary, is how that moderate vote gets split between Tony Mattivi and Kellie Warren. There’s a couple of reasons for that. One is that Kellie Warren represents a district in Johnson County which is, for those of you who, unlike me, are not from the great state of Kansas, haven’t spent a lot of time there, maybe don’t have family there, that is a county where the large suburbs of the Kansas City region are located. Very densely populated. A good mix of Republicans are residing. Kellie, I think, is going to bring greater name recognition coming out of that part of the state, but she also brings some really strong just credentials to the table as the head of the Senate judiciary committee, a practicing lawyer for many, many years. And she also brings some fairly high profile endorsements to the table, right, Kansans for Life. Tony Mattivi is just a different type of candidate, I think. He’s a very much law-and-order candidate, but also brings, again, some very high profile endorsements to the table. He has been endorsed by the largest district attorneys and county attorneys in the state. You’re talking about the district attorney in Johnson County, the district attorney down in Sedgwick County, which is where Wichita is located, and, again, for those not familiar with Kansas geography, Wichita is actually the largest city in Kansas. But I don’t think he brings the type of name recognition that a candidate like Kris Kobach brings. And so I do think there’s going to be this vote-splitting that occurs between Tony and Kellie’s candidacy in the primary. But also the other thing that makes this a very difficult prediction is that Kansas historically has very low turnout in its primaries. That may change this year, given one of the constitutional amendments that’s on the ballot. That may drive higher than usual voter turnout, and we can talk about that in a minute, Bernie. But if Kellie wins the primary, I think she is well positioned to win the general, but I am not comfortable saying at this time that any one of these three candidates is going to win the primary. I just think it’s going to be a little too close to call. I think there’s a decent chance that because of that vote-splitting amongst the moderates, if they do in fact turn out this year, and I think they will, to vote on that constitutional amendment, if they split the vote from the moderate segment of the population of the Republican party, I do think Kobach has a fighting chance.

Lori:

Well, it’s interesting too. I mean, when you look at the amount of money that the three Republican candidates have, Kris Kobach’s got far and away the most money, and I’m not suggesting that money is a deciding factor, but I think when you think about name recognition and also money and just the ability to buy the TV time and get your face out there in front of people, I think that also makes it more of an uphill climb for Kellie or the other candidate.

Meghan:

Yeah. And I will say, and I don’t know if this has been a factor in some of the other races outside of Kansas to date in the primaries, but Kobach has certainly captured what I would consider to be the Trump coalition or the Trump vote in Kansas. If you drive through Western Kansas right now, you will see prominent billboards along I-70 in Western Kansas where Kris Kobach is sharing billboard space with the face of Ted Cruz and alongside prominent Trump banners and old campaign signs from years gone by. I think there’s a very close tie in Kansas voters’ mind. Again, this is the Western half of the state, so I think that’s important to keep in mind because it’s less populous, but he has captured that segment of the Kansas population. The question just becomes, how much of that vote will he pull away from folks like Kellie Warren and the other Republican candidate.

Lori:

Meghan, thank you for doing the road work and driving down that very boring freeway, which I’ve driven many times, where there’s nothing to look at but the occasional billboard.

Meghan:

That is the price I pay for being a proud Kansas native.

Lori:

Yes. So thank you and your family for doing those road trips during election season.

Bernie:

How significant do you think it is, Meghan, that Kansas has not had an attorney general since Steve Six ended his tenure in 2011?

Lori:

A Democratic attorney general.

Bernie:

I meant… Yeah. Pardon me.

Meghan:

I do think it’s significant in the fact that to the extent that Kansans are paying attention to what their attorney general is doing, I think that’s up for debate as to how much and to what extent the AG’s work is really on the radar of constituents in Kansas. It was my experience that when we would go on the road, whether it was to the county fairs or just to take witness statements for enforcement actions that we were doing in consumer protection, a lot of people in the state, regardless of where they were, rural, suburban, urban areas of the state, they didn’t know what the AG did. They didn’t know anything. I mean, even stuff that had hit the headlines in the last six months. And so a lot of what we did was educating constituents about what the AG did. The fact that Derek Schmidt has been in that office for coming on 12 years now and there haven’t been any scandals, there haven’t been any abrupt resignations. That is significant in a state like Kansas, where that office has been plagued by some officeholders that had to resign in personal disgrace or were subject to some allegations of improper behavior. He’s been just a standup AG who’s been getting the job done. And so I do think for folks that are paying attention, that, in and of itself, may leave them to believe that voting for another Republican AG is the right thing to do, regardless of their party affiliation, regardless of who else they vote for on the ballot. And it is undeniable, I think, that Kris Kobach brings what I would consider to be stellar credentials. Now, I think people can and will argue with his political perspective and certainly I think, if he is the Republican nominee, that’s going to be hard for him to defend, but I think he is probably, if you look at his resume alone, eminently qualified. The question is, can Republicans in Kansas get past some of the other noise?

Bernie:

I think Kris Kobach is such a polarizing figure, I think it’s going to be an instinctive reaction, you heard my prediction, that basically they’re just going to be tired of the drama he brings to the office as well as to some of his positions, and so I think that’s why we have an election and that’s why people will vote.

Lori:

I’m not a political scientist, but I wonder, Kellie running against two men, if that offers any advantage as well, to women voters. Maybe not in Kansas, but maybe it does. If somebody was undecided, it was somebody who thought there should be more women in government, she would have that advantage, obviously.

Meghan:

Absolutely. I do think that plays in, especially in the political environment that we’re in right now, Lori, in the wake of Dobbs and everything else that’s going on in the wake of the pandemic. Kansas hasn’t had a female attorney general since 2003, so there may be Republican voters looking at this primary ballot thinking, now’s the time. I alluded to it earlier about the fact that there’s this constitutional amendment on the ballot in the primary on August 2^nd. I’m not comfortable predicting how that constitutional amendment question is going to affect, as I sit here, recording this podcast, how that’s going to affect turnout in the primary. And the reason for that’s twofold. One is, any voter, regardless of their affiliation, is going to be able to vote on this constitutional question, and for our listeners who don’t track Kansas politics, and I imagine that’s probably all of them, Kansas is going to actually be the first state to consider a post Dobbs ballot measure on abortion during a primary. And the actual measure is known as the Value Them Both Amendment, which is intended to affirm that there’s no constitutional right under the Kansas Constitution to abortion, or to require government funding of abortion. It’s also going to codify the state legislature’s power to pass laws that regulate abortion. There was some very public criticism in the media of the state’s decision to put the issue on the primary ballot as opposed to the general election ballot. And the reason for that really is this knowledge that turnout in Kansas primaries historically is significantly lower than the turnout in the general election. So it’ll be interesting to see the extent to which that trend holds, given the significance of this amendment and the level of public discourse around this issue right now. But it has certainly captured the public’s attention, not just nationally, but even locally in Kansas. But the backstory here is that the heavily Republican-dominated Kansas legislature, actually started this process of legislating this issue in 2021, where the Senate and the House passed legislation titled the Value Them Both Amendment that was intended to put this issue to the voters, and it was really in response to a 2019 decision by the Kansas Supreme Court that found that the constitution in Kansas does secure the right to an abortion that is separate and independent from that federal constitutional right. Again, you have to be a political scientist, and in Kansas, to understand the dynamic that exists between the legislature and the Supreme Court in Kansas, but to say that there is a tension between the Kansas Supreme Court and the Kansas Legislature would probably be the understatement of the century. There is extraordinary tension there, and a lot of it comes in part from ongoing litigation and fighting that’s been happening between the branches of government there over educational funding for decades. We don’t have enough time to go into that today, but the legislature started this process a couple of years ago to really put this issue to the voters. One of the other factors that I think makes this particular primary difficult to predict in Kansas, is the fact that the deadline for voters to affiliate with a particular party in Kansas, or to register to vote in that primary, is actually only a few weeks in advance of August 2nd. And so one of the reasons I’m not comfortable making this prediction, especially in light of this constitutional question that’s being put on the ballot, is I think it’s really unclear at this point how many voters, regardless of their political persuasion, are going to affiliate in order to vote on a partisan ballot in Kansas. Now, to be clear, voters in Kansas do not have to affiliate with a particular party in order to vote on this constitutional amendment question. But I think what we don’t know is how many voters are going to affiliate either with the Republican party or the Democratic party in advance of that primary and vote on a candidate in the AG race, specifically the Republican race. I think it’s unknown at this point how many unaffiliated, moderate, Republicans are sitting out there in Kansas interested in registering before the registration deadline, who will get up off the couch and say, “I’m going to vote in this primary,” either because of this constitutional question or because of the background of these three primary candidates on the Republican side, and will show up on August 2nd. I think all of those questions are very difficult to answer, and the answers to those questions could very likely impact the outcome of the Republican primary.

Lori:

I have a question, because General Schmidt’s been in office so long, and I think we all agree he’ll most likely succeed in his run for governor. We’ve talked about staff politics before, Meghan, on other podcasts and other talks that we’ve done, but my prediction would be that a lot of the staff leaves and goes with him to the governor’s office. Or maybe they’re just ready for a change or a retirement and this is really a good opportunity to make that change. Do you agree that it’s very likely that, as we see a new AG come in in January, that that will be a new front office, meaning executive staff, not talking about the staff in the bureaus, the people who are career attorneys there, but more the political staff. I think my prediction would be that we’ll see a whole turnover in that office, but would love both of your insights on that.

Meghan:

Yes, absolutely. I 100% agree with you, Lori, that if General Schmidt prevails in the race for governor, he will take probably nearly all of his executive staff with him. Certainly that was my experience when I was there and experienced a change in administration from the Six administration to the Schmidt administration. Every position in that front office turned over. And a lot of those mid-level management positions at the division chief level did as well. Not all of them, but several of them did. But Bernie, what are your thoughts?

Bernie:

I think that Derek will take almost all of what we call the front office staff, his executive team, and I think, frankly, that the new AG coming in, regardless of who that AG is, will bring in virtually an entire new team to that front office. I also think that we didn’t talk about this, but should Kris Kobach become the Republican candidate for attorney general, I do think that some of Derek Schmidt’s coattails will benefit him as well, even though Derek is more middle of the road. I think there’s a lot going for Kris Kobach, as Meghan said, but at the end of the day I still will stand with my prediction.

Meghan:

One of the interesting things that we also haven’t talked about, Bernie, is that at least if you visit all four of the candidates, and this includes Chris Mann’s website, right now, Chris Mann is the Democratic nominee not facing a challenger in the primary. If you look across the websites for the four candidates right now, Kris Kobach is actually the only candidate that mentions consumer protection in any way, shape, or form, which when I was preparing for this episode, I found very interesting, given General Schmidt’s strong and deep interest in that area and the work that he’s done not only building that division within his office, but really putting a lot of effort behind publicizing the work that that division is doing and trying to bring, again, public awareness to the efforts of their consumer protection division, and holding that division out as a resource for Kansans in a way that you really didn’t see prior administrations doing. I was surprised to see that Kris Kobach was the only person who, in any way, shape, or form, even mentioned consumer protections. The other ones, they talk about law and order, they talk about things like human trafficking and just general safety, but nothing with respect to consumer protection. It’ll be interesting, I think, to see once the Republicans have their candidate, how and if that changes, how we see these candidates pivot and talk more about consumer protection and their positions on what the role of that division should be in this office.

Lori:

I noticed the same thing, but I think there’s probably a messaging decision made. They’re probably limited for words, and “protect consumers” is something that they feel like they cover in those words, because I’ve never seen an office, and we say this all the time, that doesn’t participate, even if it’s in large, multistates. When it comes to what I’d say are bread-and-butter consumer protection issues: privacy, data breaches, fair advertising, or eliminating deceptive advertising; there isn’t a state that would not be interested in that. But I agree with you that it’s rare to see a number of websites or platforms advertised where they’re not explicitly saying that. It’ll be an interesting August 2nd.

Bernie:

Yeah. And if I recall, the Kansas and Arizona primary days are on the same date.

Lori:

Yes they are. Yes. And our next episode, speaking of primaries, our next episode’s going to discuss the election in Massachusetts where the primary isn’t until September 6th, so we’ll have a short break in primaries with respect to open seats. And, as you all know, that seat’s being vacated by Maura Healey, who is running for the governor of Massachusetts. That’ll actually be our last podcast dealing with open seats before we have a wrap-up episode where we quiz everybody who’s listening on everything we’ve said during all of these episodes. No, just kidding. We’ll really wrap it up and we’ll have a little bit more information to deal with, because there will be a number of primaries that have already happened, and then we can tally the vote on how many times Bernie was right.

Meghan:

I’m looking forward to it.

Bernie:

I’m going to make seven predictions next week on all the safe seats.

Lori:

All right, Bernie. I would expect nothing less.

Bernie:

None of the hard ones. I don’t want Meghan or someone like Meghan challenging me on the hard ones, so I’m going to take a pass on hard ones.

Lori:

All right. You’ve earned the right. Well, we look forward to next week’s episode. So thank you to our listeners for joining, and thank you, Meghan. You’re always so knowledgeable and interesting to talk to about this and any other subject, so thank you. And thank you for doing the road trip.

Meghan:

You’re very welcome.

Lori:

Bernie.

Bernie:

Thank you, Lori. Look forward to next week.

Lori:

All right. Great. Thank you.

Bernie:

You have been listening to the State AG Pulse, brought to you by Cozen O’Connor’s State AG Group. Research for the podcast is provided by four of our crack associates, who I need to recognize for their hard work. Ryan Bottegal, Hannah Cornett, Gianna Puccinelli, and Keturah Taylor. And, of course, our policy analyst and travelogue guru, Elizabeth Hill Hodish. If you enjoyed this week’s episode, please leave a five star rating and review. Please tune in again next week, and until then, bye-bye.