Abortion rights won’t show up explicitly in Kansas this fall, but the cultural battlefield they dominate raises at least the possibility of influencing whether voters decide to toss justices off the Kansas Supreme Court.
Six of the seven justices stand for retention during the general election.
Voters traditionally have retained justices on the Kansas Supreme Court, even when conservatives launched campaigns to oust them.
But this year offers a distinct opportunity to impose politics into the retention. All but one justice will effectively be asking to keep their job in the November vote.
If voters removed some of them, that could set the stage for a court that tilts more to the right, and could theoretically reinterpret the state constitution to conclude the court was wrong in 2019 — and wipe out the protection for abortion rights.
A Republican governor — such as Derek Schmidt, who is challenging incumbent Democratic Gov. Laura Kelly this fall — would then get to decide on who fills their slots. A Kansas governor can’t pick just anyone. They’re given a slate of finalists to choose from picked by a group of lawyers and laymen. But that still gives a governor authority to pick judges who are less sympathetic to abortion rights.
The retention elections this fall are unusual. The number of justices facing the vote this year is the most during the same election in at least the last 20 years.
While retention elections usually fly under the radar, they have been significant political fightsin the past.
Abortion rights activists have already sounded the alarm after voters overwhelmingly rejected an amendment to the state constitution that would have removed the right to abortion in Kansas. But no organized effort appears to be in the works.
Voters will still have their say when they cast ballots in November. While Supreme Court justices regularly appear on the ballot, some Kansans may not have little knowledge on how they work.
Here’s what voters should know:
What is retention?
Justices on the court must face retention elections at the end of each six-year term.
When they are appointed to the court, they must face retention during the first election after they’ve served a year on the bench. If they pass their initial retention, they then serve six-year terms before they face another election.
This year’s election includes so many justices because three of them were appointed by Kelly in 2020 and are facing their first retention.
Who is up for retention this year?
Six of the seven justices are up for retention:
- Chief Justice Marla Luckert — appointed to the court in 2002 by Republican Gov. Bill Graves.
- Dan Biles — appointed in 2009 by Democratic Gov. Kathleen Sebelius.
- Caleb Stegall — appointed in 2014 by Republican Gov. Sam Brownback.
- Evelyn Wilson — appointed in 2020 by Kelly.
- Keynen Wall Jr. — appointed in 2020 by Kelly.
- Melissa Taylor Standridge — appointed in 2020 by Kelly.
The only current justice who will not face a retention election this fall is Eric Rosen, who was appointed to the court in 2005 by Sebelius. He last faced a retention election in 2020.
Why is this year significant?
Kansas voters who are not happy with the justices’ performance — such as the 2019 ruling that found the state constitution provides the right to an abortion — can vote them out.
Only two of the justices, Luckert and Biles, joined in that decision and are up for retention. Stegall also served on the court at the time, but he was the only justice to dissent.
Ashley All of Kansas for Constitutional Freedom, the campaign that worked to reject the constitutional amendment, said the day after the primary election that she expected conservatives who want to restrict abortion rights to shift their focus to the state supreme court.
“They didn’t like the vote … so they will try to target other things and reverse it,” All said at the time.
Kansans for Life, the state’s strongest anti-abortion group that helped lead the failed effort to change the state constitution, has a history of trying to remove justices. Kristina Smith, director of the organization’s political action committee, said the organization plans to provide voting recommendations on the justices this fall, but is not actively campaigning.
However, the organization said in a message to supporters that it hasn’t given up on its anti-abortion mission despite nearly 60% of voters rejecting the state constitutional amendment.
“We are certain many Kansans who voted no will have buyer’s remorse,” the organization said. “When this happens, Kansans for Life stands ready to take action to rein in the industry.”
The general election is Nov. 8. The last day to register to vote is Oct. 18.
Dylan Lysen reports on politics for the Kansas News Service. You can follow him on Twitter @DylanLysen or email him at dlysen (at) kcur (dot) org.
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