In the final days before the August 4th primary in Kansas, organizers on both sides of the proposed Supreme Court constitutional amendment are making their last pitches to voters.
Some voters have already started casting ballots, with early voting underway in Sedgwick County and others.
At stake is the process for selecting justices for the Kansas Supreme Court. If voters approve the constitutional amendment, Kansas will move to a system of electing justices to its highest court. If not, the state will continue with its current, merit-based appointment system.
Proponents of the constitutional amendment say it would give ordinary voters more control over the court. They say the current process gives too much authority to attorneys, who hold five of the nine seats on the state’s Supreme Court nominating commission.
Critics, however, argue the amendment is a power grab by the Kansas Republican Party to replace justices who have ruled against them on key issues like education funding and abortion. They say electing justices would invite untold amounts of political spending on court races.
Russell Fox, a political science professor at Friends University, says the “vote yes” side faces a more challenging task in convincing voters. Voters often have a bias for the status quo, he said, and it can be difficult to convince them to accept change.
“Now, there's a lot of ways in which you have to put a big asterisk beside that, because when people lose faith in institutions, then they're not going to vote for the status quo,” he said. “Is the state Supreme Court the kind of thing that [voters] think about when they say, ‘Oh man, I hate the system. Oh man, I hate Topeka. I don't trust any of these politicians.’?”
Much of the messaging from the “vote yes” side has focused on sewing potential distrust in the court, highlighting controversial rulings like when the court overturned death sentences for the Carr Brothers in 2014 based on sentencing issues.
The U.S. Supreme Court reversed that decision and sent it back to Kansas for re-evaluation. But more recently, the Kansas Reflector reports the state Supreme Court addressed sentencing issues and reaffirmed the death sentences.
Ads encouraging a “yes” vote have also emphasized criticisms that attorneys have too much sway over the process for appointing justices.
“When people truly understand what our current system actually is, they are very concerned that we have essentially one special interest group, one trade association that has so much control over one an entire branch of government,” said Elizabeth Patton, regional director for the Koch family-affiliated, conservative advocacy group Americans for Prosperity (AFP).
Patton says several other states use some form of election to select Supreme Court justices. She also pointed to the fact that Kansas elected its justices for nearly a century before the notorious triple-play scandal that led Kansas voters to adopt the merit-based system the state uses today.
Under that system, each justice is subject to a retention vote after their first year on the bench and every six years after that. Patton says that process lacks true accountability and input from voters.
“No Supreme Court justice has ever not been retained. We know there is money spent in those; those are rubber-stamp votes,” she said. “And if anyone was ever not to be retained, the nominating commission goes back and then selects the replacement.”
In the weeks leading up to early voting, both the “vote yes” and “vote no” camps have flooded TV and internet ad space with their talking points.
Sometimes the nature of those ads can turn people off, Fox said, but their goal is often not to actually change people’s minds.
“They are being designed in a way to make you aware of something,” he said. “So that when somebody else in a different context says something that you're inclined to agree with because you like this person, you trust this person, you agree with this person — all of a sudden, it's like, ‘Oh yeah, I knew about that.’”
Yard signs and billboards have also popped up around town, with organizers for both campaigns promoting their talking points online and by canvassing door to door.
For the “vote no” side, Fox says the message is easier to communicate: this is essentially a repeat of the August 2022 vote on access to abortion.
As reported by the Wichita Eagle, Republican Kansas Attorney General Kris Kobach has said electing the Supreme Court could be a strategy to overturn abortion rights in the state.
And indeed, organizers for the “vote no” campaign are hoping concerns about abortion rights will translate into a large turnout like the vote in 2022.
“It mobilized young people in particular to get out and vote,” said Randi Thimesch, co-president of the League of Women Voters of Wichita Metro. “But we have found that many of those voters who voted in 2022 have not returned to the polls.”
Thimesch said the League of Women Voters has been trying to reach voters where they are, providing them context about the constitutional amendment before pitching them on a “no” vote. She said it can be a challenge to reach voters, especially for a primary in a non-presidential year.
“I feel people have turned their minds off because talking politically has been polarizing,” she said. “I think there's a lot of mistrust, and it's going to take a lot for people to stop with the mistrust, and start trusting our process again.”
“Every time that something’s said, ‘The election was stolen.’ That makes people think that our whole process is not valid.”
Voters will also decide in the August 4th primary which candidates will represent Republicans and Democrats in November elections for governor, U.S. Senate, U.S. House and state legislative races.
While the constitutional amendment is in the primary, unaffiliated voters can still cast a ballot. Voters can see a sample ballot on the Kansas Secretary of State’s website.
