Kansas Supreme Court crisis looming, putting reproductive rights & public education at risk
This one is a pretty big deal...a power grab supported by Kris Kobach.
I planned on providing an update on all of the bills we were following last week, but noticed this constitutional amendment with a hearing on Tuesday, so I’m using this newsletter to bring attention to it instead.
Constitutional amendment changing the Supreme Court
With the GOP increasing their Supermajority in both chambers after the November election, there seems to be a larger than usual number of resolutions to change our state constitution. One of the most concerning is the Senate’s SCR 1611 and its attempt to replace the merit based system for selecting Supreme Court judges in Kansas with partisan elections, a top issue for Attorney General, Kris Kobach.
Groups such as the Kansas Bar Association, Kansas Trial Lawyers, Kansas Association of Defense Counsel, ACLU, Kansans for Fair Courts, Kansas Association of School Boards, Game On for Kansas Schools, and Kansas Appleseed support the merit based system and oppose a partisan election process. Below is a PDF with the joint statement from the first three groups.
Up front Action Items
Keep scrolling for the details and to learn why this amendment is so concerning, especially for reproductive rights and public education funding. But, for those looking to take immediate action there are options for submitting public comment (testimony) and emailing your legislators.
DEADLINE: Monday (2/23) by 10:30am
If you happen to have time:
Click here for a template and instructions for submitting testimony for Tuesday’s hearing in the Senate Committee on Federal and State Affairs. Testimony becomes part of the public record.
Craft a message in your own words highlighting how the current merit system keeps political partisanship out of our courts. Use some of the information below or information from Kansans for Fair Courts to help inform your testimony.
Email your state senator anytime:
Use this super easy link from the ACLU to send a quick email to your state level senator asking them to oppose SCR 1611.
Use your own words. The link includes a pre-populated message, but I’d suggest maybe sticking to the “keeping politics out of the courtroom and ensuring we have fair and impartial courts” idea.
I expect this will pass out of committee, so we’ll have continued action on SCR 1611.
About the merit based system
The current merit based system in Kansas is intended to elevate qualified candidates and prevent the politicization of our courts. A nine member panel, made up of one lawyer and one non-lawyer from each of the state’s four congressional districts and one lawyer who chairs the commission, evaluates candidates and provides three nominees for the Governor to choose from.
Lawyers are elected by other lawyers in their congressional district, with the chair being elected by lawyers statewide. Non-lawyers are appointed by the Governor. Nominating commissioners serve four year terms and are limited to two terms. All Kansas voters have the opportunity to vote to retain or remove a judge after their first year and again every 6 years, with mandatory retirement at age 75.
…the merit system is an effective and time-tested process that has helped insulate judicial selection in the state from financial and political pressures that endanger fair and impartial courts.
— Kansans for Fair Courts
What’s at stake?
Changing the Supreme Court selection to a partisan process could have huge impacts on a variety of issues in Kansas, most obviously:
Reproductive Freedom — Kansans freedom to make their own private reproductive decisions hinges on the court’s opinion (Hodes & Nauser) that our state constitution maintains the natural right of personal autonomy, including abortion. Creating a partisan Supreme court would put the right to abortion in our state more at risk.
Public Education Funding — After over a decade of underfunding, it took a Supreme Court case (Gannon) in which the courts found public schools were unconstitutionally funded, to force the republican led legislature to finally enact a plan to restore general education funding. The courts are still an important line of defense in ensuring Kansas kids receive a quality education.
Voting rights — The Kansas Supreme Court unanimously ruled a voter suppression law passed by the KS legislature supermajority in 2021 was too broad in how it criminalized the right to register voters, which is free speech. Prior to their ruling, groups like League of Women Voters had ceased their voter registration efforts.The courts are an important line of defense in protecting voting rights.
We must protect the courts from partisanship
The republican majority in Kansas has made a variety of attempts to change the constitution when they’ve been unhappy with rulings from the Kansas Supreme Court, for example:
In 2018 proposed a constitutional amendment to limit the courts role in education funding after the courts ruling in Gannon. The resolution failed.
In 2021 put forth a constitutional amendment to explicitly state that the constitution does not secure a right to abortion after the Hodes & Nausear ruling. This resolution passed in the legislature and Kansans famously used their voices at the ballot box to vote NO.
And now, they are proposing a constitutional amendment to try to directly change the court. Leadership pushed similar constitutional amendments in 2019 & 2022, but they did not pass in the legislature. This time around the republicans hold an even larger Supermajority.
Process of Changing the Constitution
Resolutions to change the state constitution must first be passed by a two-thirds majority in both the House and Senate. The Senate needs 27 votes and republicans hold 31 seats. The House needs 84 votes and republicans hold 88 seats. The governor has no veto power over amendments to change the constitution.
If passed in the legislature, the proposed amendment will be put on the ballot for Kansas voters to decide; a simple majority is needed for it to pass. In theory, this can seem like a good idea, but amendments are often intentionally worded to mislead and/or voters may not fully understand the consequences.
It is in on our best interest to stop the amendment from passing in the legislature. In my opinion, constitutional amendments that lack bi-partisan support are a red flag.
A look at other states
According to the Brennan Center for Justice, nominating commissions are widely used in other states. Only seven states hold partisan elections for Supreme Court Justices and fourteen hold non-partisan elections. But, even in the 14 states that technically hold non-partisan elections, elections often become partisan and result in millions of dollars being poured into these races.
The 2023 Wisconsin Supreme Court race was the most expensive in history. With issues like abortion and gerrymandering at stake, spending surpassed more than $45 million, with special interest groups using $22.8 million in advocating for or against the candidates. And this year, a group backed by Elon Musk is pouring money into Wisconsin’s latest Supreme Court race.
Kansas is following best practice
The Brennan Center for Justice conducted a three-year project taking a look at judicial selections for state supreme courts. In there Choosing State Judges: A Plan for Reform report, they recommend that states do away with state supreme court elections completely. Instead, justices should be appointed through a publicly accountable process conducted by an independent nominating commission.
Below are excerpts from the study:
I also sent testimony and got the same response. I’ll try to follow up with this.
I had my opposition testimony e-mailed before 10:00 on Monday the 24th, but the deadline apparently was 10:30 am on Thursday the 20th as the legislature was off on both the 21st and 24th. Disappointing. As I recall, they've played this game before?