Kansas voters will decide Tuesday on a constitutional amendment that would change how state Supreme Court justices are selected, moving from gubernatorial appointment to popular election. This initiative is driven by conservatives who have expressed dissatisfaction with court decisions on issues including abortion, school funding, and the death penalty.
Supporters of the amendment hope that if it passes, they can elect at least four conservative, anti-abortion justices to the seven-member court by 2033. The change comes amid broader concerns about judicial elections in other states becoming increasingly partisan and expensive, with one Wisconsin Supreme Court race last year exceeding $100 million in spending.
Kansas Gov. Laura Kelly, a Democrat, opposes the measure, arguing that gerrymandering and "dark money" have already made the Legislature out of step with the state, and she fears making the judicial branch part of that "dysfunctional system."
Rationale for Change
Republican lawmakers cite a series of rulings over the past two decades as justification for the proposed change. Most recently, a district court judge reinstated a three-day grace period for mail-in ballots after Election Day, a measure that GOP lawmakers had eliminated. Kansas Senate President Ty Masterson, who is seeking the Republican nomination for governor, criticized this decision as "outrageous" and urged support for the ballot question.
This same judge, who was a finalist for a recent Supreme Court vacancy, also blocked the enforcement of a 2025 law banning gender-affirming care for transgender minors. Masterson referred to this judge as "radical."
Past rulings on education funding, dating back to 2004, are also a point of contention. Supreme Court decisions in these cases mandated increased funding to comply with the state constitution. Masterson stated in November that if the Supreme Court justices are elected, they "won't force you to spend money on schools."
Impact of Past Votes and Funding
The push for electing state Supreme Court justices gained momentum among Republicans following a 2022 public vote that affirmed the high court's 2019 decision. That decision, based on Kansas' bill of rights, guaranteed bodily autonomy and access to abortion. The total spending by both sides in that election exceeded $12 million.
Legislators involved in efforts to overturn the Supreme Court's abortion protections, including Masterson, helped draft the current proposal. Kansas Attorney General Kris Kobach, who was a Republican candidate for attorney general at the time, suggested in 2022 that electing justices would "slowly and quietly" place anti-abortion justices on the high court.
The primary financial backing for the vote-yes campaign comes from a Nashville-based nonprofit that supports Republican causes, having contributed $1.7 million of the campaign's $3.7 million in spending. Kansans for Life, a prominent anti-abortion group, has also spent at least $87,000 on campaign materials. Troy Newman, president of Operation Rescue, stated that "Kansans can bring an end to this reign of abortion by voting ‘yes.’"
Conversely, national and state affiliates of Planned Parenthood have contributed approximately $1.6 million to the vote-no campaign, which has spent over $8 million. Jamie Swan, an engineer and college teaching assistant, is actively campaigning against the proposal, viewing it as a "power grab."
Historical Context and Other States
Backers of the Kansas amendment dismiss arguments that electing justices would lead to wealthy donors controlling the Supreme Court. Elizabeth Patton, state director for Americans for Prosperity, asserted that "democracy" is the best system, despite its imperfections.
Twenty-two states currently elect their top court judges, with eight of those races being partisan. In 26 states, governors appoint justices. South Carolina and Virginia utilize their state legislators for judicial selection.
Kansas previously elected its justices for nearly a century before amending its constitution in 1958. The current system involves the governor appointing justices from a list of three finalists provided by a nominating commission comprised of attorneys. Legislators have no role in this process.
According to a review of state constitutions, Mississippi was the last state to adopt an amendment similar to the one Kansas is considering, doing so in 1914. Since that time, 18 states have moved in the opposite direction, favoring appointment systems.
Under the current Kansas system, voters review justices every six years through a yes-or-no ballot question, but no sitting justice has ever been removed. Conservatives argue this lack of accountability allows justices to make "errant decisions" without consequence. Governor Kelly has appointed four of the current justices due to retirements and deaths, including a district court judge who recently blocked enforcement of abortion restrictions.
State Sen. Mike Thompson, a Republican who supports the measure, expressed that "We don’t have a good way to fight back" under the current system.