Kansas voters are set to decide on a ballot measure that would alter the selection process for state Supreme Court justices, a change critics argue is strategically aimed at undermining abortion rights previously affirmed by the state's judiciary. The vote will determine whether the state moves from its current nonpartisan, merit-based system to a partisan election model for its highest court.
Under the existing system, a nine-member commission submits a list of candidates to the governor, who then appoints a justice. The proposed referendum would replace this with direct, partisan elections, similar to how other political offices are filled. Proponents advocate for this change, framing it as a move towards greater democratic accountability and voter expression, arguing it would prevent "unelected bureaucrats" from holding judicial power. However, opponents contend that the primary motivation behind the measure is to politicize the courts and ultimately overturn abortion protections.
This legal and political battleground in Kansas has roots in previous state rulings and voter decisions. In 2019, the Kansas Supreme Court recognized a right to abortion within the state constitution. Following the U.S. Supreme Court's 2022 Dobbs decision, which overturned Roe v. Wade, Kansas voters rejected a Republican-backed proposal to amend the state constitution and remove abortion protections. This vote preserved abortion access in the state by a 59-41 margin.
Following the 2022 vote, Kris Kobach, then a Republican candidate for state attorney general, outlined a strategy to challenge abortion rights by changing how the state's Supreme Court justices are selected. His stated aim was to elect anti-abortion candidates to the court and "slowly and quietly" reverse the 2019 ruling and the 2022 voter decision. While Kobach has more recently stated a desire to bring "accountability to the judiciary" and that the issue is "not just about abortion," critics maintain that the proposed shift to partisan judicial elections is fundamentally about restricting abortion access.
Opponents warn that if the Kansas measure succeeds, it could serve as a blueprint for similar efforts in at least 13 other states that utilize comparable judicial selection methods. They express concern that politicizing state courts could erode judicial independence and pave the way for overturning abortion protections in states where they have been safeguarded.
State courts have increasingly become a critical venue for abortion rights advocacy, particularly in states with Republican-controlled legislatures and governorships. Following the Dobbs decision, abortion rights advocates have used ballot measures to protect access in states like Missouri and Ohio, while state courts in Utah and Wyoming have blocked abortion bans.
"State legislators across the country are increasingly trying to undermine those courts," said Michael Milov-Cordoba, a court expert with the Brennan Center for Justice. "That retaliation takes a few different forms, but changing how judges are selected is top of the list." He noted that efforts to change state judiciaries often follow instances where courts have upheld abortion rights.
Similar efforts to reshape state supreme courts have occurred in Utah and Iowa in recent years. Montana is also emerging as a potential battleground, with legislators exploring ways to limit the state Supreme Court's authority. In response, organizations like the ACLU are supporting a constitutional amendment aimed at preserving the nonpartisan status of judicial elections.
Recent years have also seen a significant increase in spending and attention directed towards state supreme court elections. The 2023 Wisconsin judicial election, for example, became the most expensive in U.S. history, exceeding $100 million in spending. Deirdre Schifeling, chief political and advocacy officer at the ACLU, expressed concern that partisan elections would make courts vulnerable to "billionaire political funders" and lead to a "race to the bottom." In Kansas alone, over $12 million has been spent on the current debate, with the ACLU contributing approximately $5 million.
"Everyone's focused on the Michigan Senate race, other kind of big-ticket, sexy elections," Schifeling stated. "Well, this is just as important and much more under the radar. Without a balanced court, we are going to lose rights and liberties across the board in a state like Kansas."