From left, Mark Tallman of the Kansas Association of School Boards, Teresa Woody, litigation director of Kansas Appleseed, and retired Kansas Supreme Court Justice Carol Beier participate in a panel discussion Wednesday at the University of Kansas on a proposed amendment to the Kansas Constitution to allow direct election of Supreme Court justices. (Tim Carpenter/Kansas Reflector)
LAWRENCE — Campaigns for and against a proposed amendment to the Kansas Constitution allowing direct election of justices to the Kansas Supreme Court have begun the one-year charge to the August 2026 primary election where the issue will be decided.
While Attorney General Kris Kobach lauded the potential switch to statewide elections at an Americans for Prosperity-Kansas dinner in Wichita, a panel of skeptics brought together by Kansas Appleseed outlined Wednesday for an audience on the University of Kansas campus the reasons it would be a mistake to abandon the existing merit-based selection process.
Retired Kansas Supreme Court Justice Carol Beier, who served on the high court from 2003 to 2020, said opening the process up to expensive popular elections financed by special interests was contrary to the idea of an independent judiciary. Vague language of the amendment in terms of the process for electing justices to had yet to be clarified by the Legislature, she said.
“It is exceedingly vague,” she said. “It will be decided by the Legislature. Do you trust them?”
Mark Tallman, who lobbied for three decades at the Capitol and continues to work with the Kansas Association of School Boards, said the state Constitution mandated the Legislature make suitable provision for the financing of public education. Four major lawsuits over the past 60 years delved into constitutionality of school aid and the Supreme Court weighed into each of those disputes, he said.
He said the current school funding formula for K-12 public schools was due to expire in 2027 and substantive changes could trigger more lawsuits likely to work their way to the Supreme Court.
“Those who have been active in our association fundamentally believe that the system works and we shouldn’t risk change,” Tallman said.
Teresa Woody, litigation director of the advocacy organization Kansas Appleseed, said it would be impossible for elections of Supreme Court justices to be anything other than partisan brawls. She said the current system properly relied on candidates submitting applications, the selection of three finalists by an independent commission and appointment of new justices by a Kansas governor.
“It will work much better than the best iteration of a (proposed) constitutional amendment in really protecting Kansans’ rights,” Woody said. “Judges are there to interpret the law, not to make the law.”
Conventional wisdom says the amendment on next year’s ballot was the creation of conservative politicians frustrated with Supreme Court decisions leading to increases in state funding of K-12 public schools and declaring women had a constitutional right to abortion.
Steady reshuffling of the Supreme Court at the ballot box could influence judicial review of those poignant issues, but the Supreme Court also could assume a transformative role in voting rights and capital punishment cases.
“The Legislature appears to believe that partisan judges are likely to side with them on certain issues regardless of the rule of law,” Woody said. “They’re trying to change the rules of the game to be more favorable to those special interests and not to the general citizens of Kansas.”
Meanwhile, Kobach said he was pleased to be with AFP-Kansas to kick off of the campaign to gain voter approval for the judicial selection amendment. The amendment was endorsed by two-thirds majorities of the House and Senate. To be added to the state constitution, a simple majority of people casting votes on the August 2026 issue would resolve whether the amendment was added or discarded.
“People, not only lawyers in smoke-filled back rooms, should have a voice in selecting Kansas Supreme Court justices,” Kobach said.
In the past, Kobach said, adoption of the constitutional amendment would enable Kansans to reclaim the right to vote for justices.
“Polling shows that Kansans overwhelmingly prefer voting on Supreme Court justices to the status quo,” Kobach said. “Seventy-four percent support the direct election of Supreme Court justices, while only 20% like the current attorney-controlled system.”
In Kansas, the merit-based selection process used to fill the seven seats on the Supreme Court relied on work of a nominating commission. It has nine members, with five elected by attorneys who passed the state bar exam. The four nonlawyers are appointed by the governor.
Commission interviews with candidates and the voting by commission members are open to the public and livestreamed on the internet. On Thursday, Gov. Laura Kelly selected a new justice to the Supreme Court by choosing from among three finalists nominated by the commission. She could have rejected all three nominees, which would have returned it to the nominating commission for a redo.
“It’s an ultra-rigorous vetting process. I’ve been through it myself,” said Beier, who was appointed to the Kansas Court of Appeals by Republican Gov. Bill Graves and to the Supreme Court by Democratic Gov. Kathleen Sebelius.
Appellate judges and justices in Kansas must stand every six years for retention elections by Kansas voters.
In 2013, GOP Gov. Sam Brownback and the Legislature agreed to alter state law to replace the merit-based process for vacancies on the Court of Appeals with a system of appointment by the governor subject to confirmation by the Kansas Senate. Kelly has voluntarily made use of merit selection as she submitted Court of Appeals nominees to the Senate.
Brownback couldn’t use statute to amend the selection method for the Supreme Court because the structure was embedded in the Constitution.
Woody said rural voters ought to be wary of the proposed constitutional amendment because a majority vote would be applied to candidates for the Supreme Court. Kelly won reelection as governor in 2022 by winning fewer than 10 of the state’s 105 counties. That outcome suggested a cluster of urban centers — perhaps Johnson, Douglas, Wyandotte, Sedgwick and Riley counties — could dictate who sat on the Supreme Court.
Beier said legislative and executive branch politicians by their nature were expected to declare policy preferences and allow voters to hold accountable to their personal pledges and the platforms of political parties.
She said judges and justices should operate in a manner that concentrated on facts in evidence, weighed issues raised by participants and took into account laws enacted by government.
“Nowhere in that did you hear judges should worry about their popularity,” Beier said.
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