A Fundamental Shift in Judicial Power
Kansans head to the polls on Aug. 4 to decide the future of the state’s highest court. A proposed measure seeks to abolish the current system under which the governor chooses justices from a list submitted by a nine-member commission, moving instead to elect their state’s supreme court.
The End of the Nominating Commission
Currently, a nine-member commission vets judicial candidates and presents a list to the governor. The governor fills vacancies on the court from a list put forward by the commission, and new justices then face retention elections after a year, and every six years after that. The Republican-controlled legislature is now pushing to move to elected courts. Attorney General Kris Kobach has championed the change, arguing that there is a desire to bring back some accountability to the judiciary. Kobach stated in an interview that it’s about a panoply of potential areas where plaintiffs can ask a state supreme court to create a new liberty interest, including issues ranging from school funding to abortion rights.
Abortion Rights at the Center of the Debate
The stakes are tied directly to the bench’s stance on reproductive care. The Kansas Supreme Court’s 2019 decision recognized a right to abortion in the state’s Constitution. Since the U.S. Supreme Court declared that the federal Constitution does not protect a right to abortion, Kansas has become an abortion access point for women from the South. Data from Planned Parenthood says its affiliate there has seen a 700 percent increase in abortions since Roe v. Wade was overturned. Emily Wales, president of Planned Parenthood Great Plains Votes, argues that the measure is another tactic to end abortion rights in the state Constitution after voters resoundingly rejected a previous push.
From the “Missouri Plan” to Partisan Politics
The state’s current framework, the “Missouri Plan,” was adopted in the wake of the 1957 “triple play” scandal—a political maneuver involving the resignation of a chief justice and the appointment of a former governor. It was designed to make sure that the court reflected the entire state. While supporters of the measure point to the fact that nearly half the states elect their supreme court justices, opponents warn that doing so puts the court up for sale to the highest bidder. They cite recent high-cost elections in Wisconsin as a cautionary example of how judicial contests can become vehicles for heavy campaign financing.
A Repeat of the 2022 Political Divide
The upcoming vote follows a significant 2022 referendum, where Kansas voters rejected an amendment to declare that there was no constitutional right to abortion by an 18-percentage-point margin. Now, voters must decide whether to elect their state’s supreme court. Supporters emphasize the necessity of accountability, while critics maintain that the current system was developed specifically because of concerns about political gamesmanship in the courts.
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