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State Judicial Elections Become Political Battlegrounds

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Chief Justice Lawton Nuss takes notes during arguments before the Kansas Supreme Court in Topeka, Kan., on Dec. 14, 2015. Nuss faces a retention election this year — and an unprecedented campaign to vote him out of office.

On a recent, rainy Tuesday night, a surprisingly big crowd — a few hundred people — gather in an auditorium at Hutchinson Community College to watch the Kansas Supreme Court hear oral arguments.

The justices slowly walk out in their robes and sit on a raised podium. It looks a little goofy, like a community theater production of a trial.

But that auditorium is a real courtroom. The Kansas Supreme Court has been holding hearings in public places across the state for a few years now, in an effort to demystify the court and show Kansans what they do.

Megan Storie, a criminal justice major who hopes to be an attorney, is really pumped to be here.

"This is something that I'm really passionate about. I love law, and everything that has to do with it," she says.

But Storie is not sure how she'll vote in the state's upcoming judicial election — or even how she should go about picking a judge.

And that's the question at the center of this election and those in other states: Should judges be impartial arbiters? Or are they accountable to the people who elect them?

Across the country, judicial elections such as the one coming up in Kansas have become increasingly political. In Kansas — and 15 other states — voters don't elect their Supreme Court justices. But once they're in, voters go to the polls to decide whether to keep them.

For decades, the majority of Kansans have voted yes, to keep their judges. In fact, no Kansas Supreme Court justice has ever been voted out.

But this year, as with national politics, the script has been thrown out, and with this election, the Kansas Supreme Court could completely change, with five out of seven justices up for election.

Alicia Bannon, who monitors state courts at the Brennan Center for Justice at New York University School of Law, has noticed a dramatic shift across the country as judicial elections have become more partisan and negative.

"It's essentially created an arms race, where you have a lot of money going in and interest groups basically trying to shape who's sitting on the courts and the decision that the courts are making," Bannon says.

Kansas used to be immune to these trends. The Supreme Court judges are selected by a nonpartisan nominating commission and appointed by the governor. Then, every six years Kansans vote on whether to retain the judges.

Decades ago, Kansas adopted the merit system as a way to keep politics out of the judiciary. But this year, the judiciary is right back in the middle of a political firefight, with concerted efforts to oust four of the five judges who are up for election.

Several groups in Kansas are campaigning heavily in this election. One is Kansans for Life, the state's most vocal anti-abortion organization.The backroom of its Wichita office smells like cardboard. There are boxes everywhere — mailers, door hangers, postcards and signs.

Officer manager Susan Guthrie holds up a glossy yard sign with a big yellow gavel on it. It reads: "Vote No on Activist Judges."

In the coming weeks, Kansans for Life plans to make thousands of calls and distribute about 200,000 door hangers.

David Gittrich, one of the leaders of Kansans for Life, says his priority is to get justices on the bench who won't throw out the anti-abortion bills his organization supports.

"So if all of our bills are going to end up in court, then we at least should make sure that we have a fair hearing in court," Gittrich says.

In addition to working to unseat some of the current judges, Kansans for Life would like the state to go a step further and change the way it selects judges. Gittrich prefers elections.

"If we had open elections, I am pretty sure every member of the courts would be conservative and think pro-life was a good thing, because the people of Kansas think pro-life is a good thing," he says.

The Kansas Legislature has floated bills that would change the way justices are selected in the state. None have passed.

There are also groups urging voters to vote yes and keep their judges, including four former Kansas governors — two Republicans and two Democrats.

In this cacophony of voices and campaigns, the justices remain silent. Ethically, they can't campaign. They can't say "vote for me" or publicly take positions on issues. All they can do is give speeches at Rotary clubs and chat with people after public hearings, like the ones in Hutchinson.

Chief Justice Lawton Nuss — one of the justices being targeted for ouster — says it's a good thing judges can't campaign.

"The U.S. Supreme Court said judges need to be indifferent to popularity. They are not politicians; they don't do what the people want, 'cause what the people want can change from week to week, month to month, year to year," he says.,

However Kansans vote this Nov. 8, Nuss says, they should be proud of their judiciary and safeguard it from politics.

Ashley Cleek is a reporter with the Life of the Law Podcast.

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