Kansas Voters Will Decide Whether to Hold Open Elections for State Supreme Court

New York Times

20-03-2025

The Kansas Supreme Court, made up mostly of jurists appointed by Democrats, has long served as a check on the Republican-dominated Legislature.
The justices have established a statewide right to abortion. They have told Republican leaders that they were not spending enough on schools. And they have weathered repeated attempts to tip the court's balance of power toward conservatives.
But the high court, which is officially nonpartisan, could soon face major changes. Lawmakers decided on Wednesday to place a question on the primary ballot in August 2026 that would ask voters to amend the Kansas Constitution to set open elections for the court. If voters approve the change, justices would become free to campaign and hold leadership positions in political parties.
The move, which follows efforts in other states to elect justices, would give Kansas Republicans a clearer path toward a conservative majority on the court and the possibility of revisiting issues like abortion. Conservative lawmakers said making the change would return power to voters.
'It comes down to one thing: Do you trust the people of Kansas to select the seven people who run the third branch of our government and who have an enormous say over our government and how it's run?' asked State Representative Bob Lewis, a Republican from western Kansas who supported placing the amendment on the ballot.
Democrats criticized the effort to hold open elections, saying it would empower wealthy campaign donors and politicize the judiciary. They pointed to polarizing elections in places like North Carolina, where the results of a 2024 State Supreme Court election are still being disputed, and Wisconsin, where tens of millions of dollars have been spent ahead of a State Supreme Court election next month.
'What a partisan judicial election process would do is invite substantial amounts of misinformation, dark money and special interests into our state and into our system of justice, an action that would predictably make that system less just,' State Representative Lindsay Vaughn, a Democrat from suburban Kansas City, said on the House floor.
Kansas currently fills vacancies on its Supreme Court by having a nine-member commission send three finalists to the governor, who makes an appointment. The new justice faces a statewide retention vote after one year on the bench, and again every six years. Five of the court's seven justices were appointed by Democratic governors, including three by the current governor, Laura Kelly.
Republican officials have been frustrated with the court for years, and have tried and failed to shift the balance of power. In the 2010s, Republicans threatened to cut off funding to the courts, tried unsuccessfully to unseat justices in retention elections and discussed allowing justices to be impeached if their decisions 'usurp' the power of other branches of government.
Though Republicans have a range of complaints about the court, abortion has often been at the center of those frustrations. After the court voided restrictions passed by lawmakers and found that the State Constitution protected a right to abortion, Republican lawmakers placed a question on the August 2022 primary ballot that asked voters to amend the Constitution to say that it did not include a right to abortion. If it had passed, lawmakers would then have been free to pass new restrictions or a statewide ban.
But that election ended up taking place shortly after the U.S. Supreme Court overturned Roe v. Wade, bringing far more attention and passion from abortion-rights supporters to the Kansas race than abortion opponents had expected. Kansas voters rejected the amendment, and the State Supreme Court reaffirmed the right to abortion last year. Since the fall of Roe, Kansas has increasingly become a destination for women from other states who are seeking abortions.
Ms. Kelly, a second-term governor who is barred by term limits from running for re-election, told local reporters that she thought it was a mistake to put the judicial election question on the ballot next year. She suggested that Republicans were again maneuvering to restrict abortion after losing at the polls nearly three years ago.
'I hope that Kansans will recognize that this whole election of Supreme Court justices is starting down the path again to ban exactly what Kansans said they didn't want banned in 2022,' Ms. Kelly said.
The amendment that Kansas voters will decide on next year leaves unresolved whether the Supreme Court seats would be elected statewide or by district, and whether candidates would run on a partisan ticket. The Legislature, where Republicans hold large majorities in both chambers, would set those rules if the amendment were to pass.
'If the voters choose to have elections, it will be more transparent, it will be more open,' State Representative Susan Humphries, a Republican from Wichita, said on Wednesday. 'I submit to you, if we asked the regular citizens across Kansas how are our Supreme Court justices elected, they don't know.'
Though Kansas reliably chooses Republicans in presidential elections, its voters have an independent streak in other races. The state has alternated between electing Republican and Democratic governors for decades. After two terms under Ms. Kelly, Republicans are hopeful that they will regain full control of state government in the 2026 elections.
States have a range of different methods for selecting justices to their high courts, including appointments, nonpartisan elections and partisan elections. According to the Brennan Center for Justice, seven states hold partisan elections for supreme court justices. Republican lawmakers in Montana and West Virginia have pushed this year to join that list.