Kansas used to elect justices, but that changed after a 1950s scheme by then-Gov. Fred Hall. Now, there’s a statewide vote in August that would return to directly electing justices for the state’s highest court.
Hall’s scheme went like this.
Kansas Supreme Court Chief Justice William Smith retired abruptly because of health reasons. Hall then resigned as governor just 11 days before leaving office because he wasn’t nominated again. Finally, Hall’s lieutenant governor — John McCuish — appointed Hall to the Supreme Court.
Nothing Hall did was illegal. But after this scandal, known as the “triple play," Kansas changed its constitution away from the direct election of justices to a merit-based system where a panel screens candidates.
The current system includes a nine-person panel appointed by the governor and lawyers. The commission is composed of five lawyers who are elected by licensed attorneys in Kansas. The other four members are picked by the governor.
When there’s a vacancy on the court, this commission vets the candidates then sends three finalists to the governor to pick one.
But the constitutional amendment vote in August would return to directly electing justices on the Kansas Supreme Court.
Conservative lawmakers and business leaders argue the change will lead to a needed check on judicial power. Activists and former justices opposed to it believe direct elections will lead to partisan justices who make legal decisions on issues like abortion access and education funding based on campaign donations, not the rule of law.
Abortion rights
Some critics of the change point to this as a redo of the 2022 vote on constitutional abortion rights, which Kansans rejected in favor of abortion access. Great Plains President and CEO Emily Wales said this time the strategy is restricting abortion through how justices are selected.
“This is about banning abortion and restricting rights that Kansans have demanded they keep,” she said.
Many conservative lawmakers in Kansas have not been happy about court rulings on abortion rights and school funding. Wales said that is what the Aug. 4 amendment vote is really about.
“The end game is to put justices on the Supreme Court that are going to be in line with their political values,” she said.
A 2022 Wichita Eagle article quoted Attorney General Kris Kobach as he outlined a new path to an abortion ban, which begins by directly electing justices.
Kobach did not respond to requests for comment.
During a recent gubernatorial debate, Republican Senate President Ty Masterson said the state should elect justices because that would better represent Kansans.
“I'm going to support whatever gives the people of Kansas the biggest voice in that branch,” Masterson said. “That is the problem. We have a court that does not reflect the Kansas people's values.”
Checks and balances
James Franko is president of the right-leaning think tank the Kansas Policy Institute. Franko said he does not believe there’s currently a check on judicial power.
“It is just hard for me to think that that has really proven itself to be the case with nine unelected people on this nominating commission,” Franko said.
Judges do have to face retention elections in Kansas.
These yes or no ballots give voters the ability to remove justices. Franko argued that it is not enough. He said that the low turnout numbers in those elections do not lend themselves to a true societal check on judicial power.
Former Kansas Supreme Court Chief Justice Lawton Nuss does believe in the power of retention elections, and said electing justices would bring politics and campaign funding into the court.
Nuss was selected for the court in 2002 by then Republican Gov. Bill Graves. He served as chief justice for most of the 2010s before retiring in 2019. Nuss noted in his last retention election that he received more than 600,000 yes votes which he described as “democracy in action.”
Nuss does not think that directly electing justices would be a positive for Kansans.
He points to the recent Wisconsin Supreme Court election, which brought in millions of dollars from donors like Elon Musk. Nuss said this could lead Kansas down a dark money path where donors want rulings they agree with.
“They expect something from their investment,” Nuss said. “That compromises the integrity of the court.”
Business decisions
Kansas Chamber of Commerce President and CEO Eric Stafford wants to allow Kansans the right to vote in their justices.
Stafford specifically pointed to one issue that has been hurting the state’s business climate. A 2019 decision, which removed state caps on non-economic damages including pain and suffering, in personal injury lawsuits.
Stafford said that decision has led to uncertainty and driving up insurance costs for businesses.
“When there is no cap and there is no certainty,” Stafford said, “it makes it more difficult.”
Stafford also pointed to a 2019 state legal climate ranking which polls business executives and corporate attorneys from the U.S. Chamber of Commerce’s Institute for Legal Reform. It asked how fair and reasonable each state’s legal liability system is. In that poll by the pro-business group, Kansas ranks 32nd. In the early 2010s Kansas was consistently ranked in the top 10 of the business poll.
Overall, Stafford asks why lawyers should help choose who they put on the nominating commission when other professions are not given that same right. He described it as a “pretty elitist attitude.”
Stafford said that educators do not get to choose their own school board and CEOs do not get to choose the state’s governor.
“Why is one profession so smart and so educated?” he asked.
Education funding impacts
Education advocates also worry that an elected Supreme Court could undo past rulings determining what is adequate education funding.
This includes the lawsuit that eventually resulted in schools receiving an inflationary adjustment in funding.
This adjustment requires lawmakers to pass budgets that take into account the ever-increasing school district costs of fuel, food and salaries.
Kansas Association of School Boards Assistant Executive Director of Advocacy and Governmental Relations Leah Fliter said this allows schools to be treated equally by lawmakers.
“Prices go up for public schools,” Fliter said, “just as they do for businesses in the state.
Some lawmakers want to consider changes to this inflationary adjustment.
Kansas Republican state Rep. Troy Waymaster is one of the state’s lead budget writers.
Waymaster said earlier this year during a budget debate that the Gannon decision is causing large annual increases in school funding.
“Next year this body will have the opportunity to look at the school finance formula,” Waymaster said. “And there needs to be some changes made.”
Changes could mean new lawsuits over education funding.
Education advocates wonder how the court might rule on major issues like this in the future if it’s composed of elected officials.
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