Kansas voters will decide in the August 2026 primary election how the state should select its Supreme Court justices, but some fear the timing of the vote could dampen turnout.
A proposed state constitutional amendment would make Kansas Supreme Court justices elected by a statewide popular vote rather than appointed by the governor.
It’s a move some Republican lawmakers argue would make justices more accountable to voters. The GOP-dominated Legislature has criticized the court in recent years over its rulings on issues like education funding and abortion access.
“The issue is pretty simple,” said Republican Rep. Bob Lewis of Garden City. “It comes down to one thing: Do you trust the people of Kansas to select the seven people who run the third branch of our government?”
Lawmakers are sending the amendment question to voters after the Kansas House passed the proposal with a two-thirds majority on Wednesday. The Senate had already passed the measure. A few Republicans -- three senators and four House members -- joined Democrats in voting against the proposal.
Democratic legislators and some law professionals oppose electing justices because they say it would invite partisan politics and corruption into the state’s highest court. They point to states like Wisconsin, where races for the state Supreme Court have become targets for millions of dollars in campaign funds.
“This is about trying to insert politics into a branch of government that should not be political,” David Morantz of the Kansas Trial Lawyers Association told KCUR. “And that’s very dangerous for Kansas.”
Republicans, who have a supermajority in both chambers, argue money is not the deciding factor in elections. They say Kansas voters can resist undue political influence.
“I believe in the power of the people,” Republican House Majority Leader Chris Croft said. “The people will – and they've done this in many cases – elect the right people to the right positions.”
Timing of vote under fire
Some Democrats have criticized Republican leaders’ choice to hold the vote during the August primary rather than the November general election.
“They think the voters should have a bigger role in the selection process,” said Democratic Rep. Lindsay Vaugh of Overland Park. “To that, I find it ironic that we have chosen to place this constitutional amendment on a ballot of a low-turnout election.”
Overall, primary elections tend to have significantly lower turnout than general elections. The primary in 2022 was a major exception, with nearly half of the state’s registered voters showing up to weigh in on an amendment that would have removed abortion rights from the state constitution.
Kansas Democrats also don’t usually run as many primary races as Republicans due to fewer candidates, meaning voters from their party often have less reason to vote in a primary. That could skew the sample of voters in favor of Republicans.
Republican leaders did not immediately respond to inquiries about the decision to hold the vote during the primary.
A return to roots for Kansas?
Kansans used to elect their Supreme Court justices until 1958, after the infamous “triple-play” scandal. That’s when former Gov. Fred Hall, a Republican, resigned after losing his bid for re-election — only to be nominated to the Kansas Supreme Court by his former lieutenant governor shortly afterward.
The state then moved to its current, merit-based appointment system. A nine-person nominating commission fields applicants and narrows them down to three candidates. The governor then picks a justice from those three.
Democratic Gov. Laura Kelly has appointed three of the state’s seven Supreme Court justices through that method.
Rep. Dan Osman is a Democrat from Overland Park. He argues the system has worked well ever since it was implemented.
“This is the way that it’s done in many, many states,” he said. “And every state that has a merit selection process has never, ever gone to an election proceeding. It doesn’t make sense to do so.”
But Lewis said Kansas pivoting to that system in the late 1950s did not directly address the corruption at the heart of the scandal.
“The state responded to (the scandal) by taking power away from the people and handing it to a group of other, unelectable elites,” he said.
The nominating commission includes two people from each of the state’s four Congressional districts, both a lawyer and a non-lawyer. A fifth lawyer chairs the commission.
Members of the Kansas Bar Association elect the five lawyers, and the governor appoints the four non-lawyers.
Under current law, Kansas Supreme Court justices are subject to a retention vote after their first year on the bench, and again every six years. Those votes let Kansans decide whether a sitting justice — or a judge on a lower court — should be kept on the bench.
Some Republicans say retention votes aren’t effective, though, with only one judge ever being voted off the bench since the system was implemented. No Supreme Court justice has ever been removed.
At least 21 states currently select their Supreme Court justices through popular vote.
Daniel Caudill reports on the Kansas Statehouse and government for Kansas Public Radio and the Kansas News Service. You can email him at dcaudill@ku.edu.
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