Kansas voters will soon decide whether to keep the current system of nominating justices to the state’s Supreme Court or to replace it with direct elections.

Under the current system, candidates are vetted by a nine-member commission. After a series of public hearings, the commission selects three finalists that the governor selects from. 

All voters, including independents, can vote on the proposed constitutional amendment Aug. 4. A “yes” vote on the ballot question would establish direct elections, while a “no” vote would keep the current system. 

Kansas Supreme Court Ballot Language

If approved, the amendment would bring to an end the judicial nomination system Kansas has had in place since 1958. Proponents of the change argue the current system is undemocratic, puts too much power in the hands of attorneys and leads to controversial decisions on issues like abortion and education funding. 

Opponents, meanwhile, say elections would lead to expensive campaign seasons, change the makeup of the court to favor politically savvy judges and compromise justices’ integrity through the influence of donors and public opinion.

The current system in Kansas

Kansas is the only state with a nominating commission in which a majority of the members are lawyers. One lawyer from each congressional district is elected by other lawyers from their district, and a fifth lawyer is elected statewide to chair the commission. A nonlawyer from each district is also appointed by the governor.

But the image of “lawyers and backrooms and cigars and suits (deciding) our Supreme Court justice is absolutely not how it works,” according to Amii Castle, a law professor at the University of Kansas who was previously a practicing attorney and law clerk. 

Castle pointed out that almost half of the commission’s members aren’t lawyers and that the process is open to the public, including livestreams of candidates’ interviews. 

In addition to answering the commission’s questions about their personal and professional lives, candidates must also provide information like credit reports, the names of lawyers they’ve practiced alongside and against, and the names of judges they’ve practiced before, all of whom the commission then calls to ask additional questions.

After three finalists are chosen by the commission, they undergo a background check by the Kansas Bureau of Investigation before the governor selects a new justice. 

Voters can remove justices through retention elections, which are held after a new justice’s first year and every six years after, though no Kansas Supreme Court justice has ever lost one. 

Growing tension leads to ballot showdown

Beyond addressing what they see as an undemocratic process, some proponents frame the amendment as a direct response to some of the court’s recent decisions.

Republican leaders have taken particular umbrage with the court’s 2019 decision to uphold abortion rights. Frustration with that decision drove the 2022 effort to amend the state constitution to ban abortion, which voters rejected.

Shortly thereafter, Kansas Attorney General Kris Kobach and Republican legislators began pushing to change how justices are selected. Kobach said electing justices by popular vote would enable the state to “slowly and quietly” get more anti-abortion judges on the court and ultimately overturn the 2019 decision, according to reporting by the Wichita Eagle.

Kansas Senate President Ty Masterson, an Andover Republican who is running for governor, also told a Marion County group last year that “if we elect our Supreme Court, they won’t force you to spend money on schools,” according to reporting from the Marion County Record. 

Neither Kobach nor Masterson’s offices responded to requests for an interview.

Several cases involving K-12 education funding have led to clashes between the Kansas Supreme Court and the legislature over the last several decades, according to Steve Leben, a former judge and current professor and associate dean at the University of Missouri-Kansas City School of Law. 

“When we look at this almost 70-year period that we’ve had nonpartisan merit selection, school finance has been around as a topic of controversy for quite a long time,” Leben said. “The thing that has changed is the abortion decision and the failure at the voting booth to overturn that decision.”

Kansas Supreme Court Debate

The growing tension between the court and the legislature made a showdown like the current amendment unsurprising, according to Nathaniel Birkhead, a political science professor at Kansas State University. 

“If you’re able to replace the judges … there’s certainly a possibility that then you can change the membership of the court and go back to pass another law restricting abortion like they did in 2018,” Birkhead said.

There is a precedent for using elections to overturn court decisions, according to Leben. Shortly after the North Carolina Supreme Court ruled that gerrymandering the state’s legislative districts was unconstitutional, voters chose to replace several justices, and the new court quickly reversed its decision on the case. 

While voters having a say in their government is important, Castle said, she worries elections would reward political appeal rather than legal experience and temperament. 

They would also favor judges who can successfully secure donations, she said, which “in and of itself has the potential to pervert the system.”

While Castle said she has concerns about justices directly accepting money from individual donors, her bigger concern is how donations to political action committees might influence judges’ decisions.

Wisconsin’s 2025 Supreme Court race made national headlines after PACs representing both parties spent $100 million to drive support for their preferred judges. 

“Then you have judges who are beholden to these political action committees who actually got them elected. Because that’s the kind of money it takes to win a statewide election,” Castle said. “We’re going to have judges sitting on the bench who want to get reelected, so they don’t want to piss off their donors or the PACs that helped them.”

The law firms that argue cases before the state Supreme Court would also have a strong incentive to donate to judges’ campaigns directly or through PACs, she added.

Public opinion versus constitutionality

Judges serving in states with judicial elections tend to make decisions that more closely align with public opinion, Birkhead said, adding that “the problem with that is (that) opinion often doesn’t really understand the nuances of constitutional law.”

One result is that judges in those states tend to be stricter with sentencing, he said.

“It’s never popular to let somebody go because their due process rights were violated, but it’s the right thing to do,” he said. “But if judges are now going to be subject to being voted out of office because they simply upheld the constitution … then judges will wind up being more punitive.”

Leben said that even the appearance that donors or voters were influencing justices’ decisions will cast doubt on rulings and hurt Kansans’ respect for the rule of law.

Unanswered questions

Kansans’ August ballots will ask whether voters should elect Supreme Court justices but says “the rules applicable for such elections and the designation of position numbers shall be provided by law.”

That means specifics of the proposed judicial election process — like whether justices will run in statewide or districtwide elections or whether elections will be partisan — will be up to the legislature to decide after voters have approved the amendment.

Asked during a televised debate last week whether judicial candidates would run with an R or D next to their names, Kobach, the attorney general, said “we don’t know yet.”

“Will we see ads that might be (partisan)? I think so. And I think that’s a good thing,” he added. “Political ads, the money that goes into advertising, is a way candidates speak to the voters.”

As for whether there might be new qualification requirements under an electoral system, Kobach said “the legislature can decide.”

“They can also set contribution limits, too, like they do for any office in Kansas,” he added. “They can set all of these rules for the elections when the voters pass this.”