Legal groups and ACLU decry proposed partisan elections of Kansas Supreme Court

The American Civil Liberties Union of Kansas called a proposed constitutional amendment that reforms the state's Supreme Court to directly elect justices a "blatant power grab" in light of past comments from state officials.
The resolution — if passed by both chambers with a two-thirds majority and placed on a ballot for approval by the general public — would have elections for three justices in 2028, two justices in 2030 and two justices in 2032. The justices would face reelection every six years.
It would also strip language out of the state constitution barring Supreme Court justices from contributing to or holding office in a political party.
Kansas is one of 14 states that uses a judicial selection system called the Missouri Plan, or merit-based judicial selection. Kansas has used the system since the 1950s, which consists of a nominating commission creating a list of candidates from which the governor selects one.
The process is meant to raise up qualified candidates and depoliticize the courts. But it's been criticized in Kansas by politicians that view it as too far left.
"Our current state Supreme Court is selected in a manner that makes it one of the most progressive supreme courts in the United States," Attorney General Kris Kobach said in September at the opening of Shawnee County's GOP election headquarters. "I've argued in front of several of them, and our court is far to the left of the norm in state supreme courts. It's all because of the method we select our justices. We absolutely have to have a constitutional amendment to change that."
Kobach invoked the Supreme Court's ruling on several abortion issues that were struck down and a signature verification law for elections that only narrowly survived a legal challenge.
The ACLU of Kansas said the proposed amendment is meant to get around rulings that are unfavorable to its proponents politically.
"The reason why (Kobach) wanted to undermine judicial independence was that he didn't like the rulings the court was making, that he didn't like the fact that the voters were retaining the justices who were making the rulings he didn't like and instituting a new judicial selection process would be a way of getting rulings that he does like," said Micah Cubic, executive director of the ACLU of Kansas.
The Brennan Center for Justice says there are six ways that states select their supreme court justices. Following are how many each method is used by the 50 states and District of Columbia:
Fourteen states use the Missouri Plan.
Fourteen states use non-partisan elections.
In 10 states, the governor appoints the Supreme Court.
In seven states, justices are elected in partisan elections.
Four states use a hybrid method.
In two states, legislators appoint justices.
In 20 states, including Kansas, justices are subject to retention elections where they can be voted out of office by a majority vote after their first year, and then every six years after. Justices are rarely ousted in retention elections, and no Kansas Supreme Court justice has ever lost their seat via election despite some campaigns to oust justices.
"A few years ago Sam Brownback, Kris Kobach and their allies spent millions to try and defeat members of the court who had handed down the ruling on school funding equity, and despite spending millions, they did not succeed," Kubic said.
In the current Supreme Court, five justices were appointed by Democratic governors — three by Laura Kelly and two by Kathleen Sebelius — while one each was appointed by former Republican Govs. Sam Brownback and Bill Graves.
A panel made up of attorneys presents a list of three candidates to the governor.
The state's three largest associations of attorneys — the Kansas Bar Association, the Kansas Association of Defense Attorneys and the Kansas Trial Lawyers Association — oppose the resolution.
"The judicial branch is different from the legislative and executive branches of government. Justices have a constitutional obligation to consider cases in the interest of all Kansans who appear before them. They must have greater protections from improper influence than any other constitutional officers," the three groups said in a joint statement.
The group pointed to a popular election of a justice in Wisconsin where $45 million in "dark money" was spent on the campaign and Arkansas's elected justices public attempts to override each other's decisions.
"Neither popular elections nor Senate confirmation shield nominees for the Supreme Court from bias as well as the Supreme Court Nominating Commission process does," the statement said.
But the Missouri Plan itself is criticized for putting too much weight to attorneys over the general public. Senate President Ty Masterson, R-Andover, who has previously said he's interested in reforming judicial selection, highlighted that in his response to the ACLU.
'It's appalling that the ACLU, who touts voting rights, now opposes voting rights — and suggests allowing the people to vote is a power grab. In fact, the present system is a power grab for attorneys, who currently have control over nearly the entire selection process. We believe the power to select who sits on our Supreme Court should belong to all Kansans," Masterson said.
State lawmakers have made several attempts to reform how justices are selected. In 2013, 2015 and 2022, there were attempts to make justice appointees subject to Senate confirmation. Direct elections were also proposed in 2015-16 and 2022. All of the attempts at reform failed.
House Speaker Dan Hawkins, R-Wichita, said judicial selection reform as proposed by Kobach isn't necessarily the House's position and said it has repeatedly come up short of supermajority support.
"The last time we had that vote, which has not been that many years ago, we came up significantly short," Hawkins said after Kobach's comments in September.
This article originally appeared on Topeka Capital-Journal: Constitutional amendment would reform Kansas judicial selection

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