It’s typically a no-drama affair. Every six years, Kansans vote whether to retain the state’s sitting Supreme Court justices.
The question is the last item on the ballot. In Kansas history, voters never have voted out a justice on the state’s highest court.
But this year, the judicial elections in Kansas—known as retention elections—are especially contentious and political, mirroring shifts in other states as the public reckons with what the role of the court should be.
“It is political in Kansas right now, but I believe the court brought this environment upon themselves,” state Senate President Susan Wagle, a Republican, said in an interview with The Daily Signal. “The information you want to get from a court ruling is whether a law fits within the [state] constitution, and by all appearances, we have a number of justices making decisions based on personal convictions rather than state law and the state constitution.”
Kansas Gov. Sam Brownback and other conservative Republicans in the Legislature have not been shy about wanting to reshape the state’s Supreme Court.
Conservatives have accused justices of overstepping their authority, and have expressed outrage over rulings that overturned death penalty verdicts and struck down abortion restrictions. In another controversial ruling, the court determined the Republican-led Legislature has not adequately and equitably funded public schools.
In response, the Kansas Legislature has proposed bills to change the way justices are selected in the state, giving the governor more power in appointing them. That effort so far has failed.
In 2014, the Legislature passed and Brownback signed an appropriations bill that weakened the state Supreme Court’s administrative authority over local courts. Last year, the state Supreme Court ruled that measure unconstitutional.
The criticism of the seven-member court by conservative politicians has elevated the judicial elections into the public discourse. Outside groups are campaigning—and spending heavily on the election. And the Kansas Republican Party for the first time took a formal position on judicial retention.
“The Republican base in Kansas is not comfortable with a lot of decisions the court makes,” Clayton Barker, executive director of the state Republican Party, told The Daily Signal. “The state party is more involved this year because the court is going beyond judicial power and these justices don’t seem to have the wisdom of self-control.”
“The Republican base in Kansas is not comfortable with a lot of decisions the court makes,” says Clayton Barker of @KansasGOP.
Chief Justice Lawton Nuss and four other justices face a retention vote: Marla J. Luckert, Carol A. Beier, Dan Biles, and Caleb Stegall.
Groups opposing retention specifically aim to oust four of the five—all but Stegall, the only one appointed by Brownback. The others were appointed by Democratic and Republican governors who preceded him.
These anti-retention groups include Kansans for Life—the state’s most vocal organization opposing abortion—and Kansans for Justice.
The latter group was created by family and friends of the victims in a notorious multiple-murder case. Brothers Jonathan and Reginald Carr were sentenced to death in 2002 after being convicted of robbing, raping, kidnapping, and shooting five people—four of whom died—in Wichita in 2000.
The Kansas Supreme Court vacated the Carrs’ death sentences in 2014, and required new trials. The U.S. Supreme Court overruled the state court’s decision, and reinstated the death sentences.
Two prominent groups, meanwhile, support retention of the justices targeted by conservatives. Kansans for Fair Courts says it represents “thousands” who believe conservative politicians unfairly have rebuked the court and unethically politicized the judicial process.
Four former Kansas governors—Republicans Bill Graves and Mike Hayden and Democrats Kathleen Sebelius and John Carlin—also urge voters to keep the justices in their seats.
“As former governors we understand the unique roles of the three branches of government,” Graves said during a media tour on the topic in September. “We may not have always agreed with them but we respected that the judicial branch is a nonpolitical branch accountable to the constitution. The courts provide a critical check and balance on the other two branches and we want to keep this constitutional balance.”
Alicia Bannon, who monitors state courts at the Brennan Center for Justice at New York University School of Law, says outside groups advocating on the subject of retention elections are not subject to financial disclosure requirements under Kansas law.
But in one measurement of the scale of spending, she said, she has reviewed television contracts filed with the Federal Communications Commission that show outside groups on both sides have spent roughly $600,000 combined on ads related to the judicial elections.
In 2010, Bannon says, she began noticing increasing outside interest and spending related to retention elections in the 18 states that use such a method as part of their judicial systems.
“We are seeing a number of retention elections attracting a lot of spending, and generally becoming more politicized—sometimes linked to a particular decision on the bench and sometimes linked more to a general interest in shifting the ideological position of the court,” Bannon told The Daily Signal in an interview.
Bannon named Iowa, Florida, Tennessee, and Illinois as states that had contentious Supreme Court retention elections in recent years.
Bannon says she worries that the politics surrounding such races affect how judges make decisions, and undermine the faith in courts as a nonpartisan arbiter.
“One of the troubling aspects of this whole development is that because judges are focusing on their re-election while sitting on the bench, their decisions are up for criticism,” Bannon said, adding:
There is a lot of evidence that job security concerns are bearing on decisions. More generally, if judges start to see themselves as simply politicians, than it becomes harder for them to approach cases putting all politics aside. And ultimately, that’s their job.
The Kansas judicial system is conditioned so as not to be vulnerable to political winds, supporters say.
As authorized by the state constitution, justices of the Supreme Court are selected by a nonpartisan nominating commission and appointed by the governor.
“The Kansas Constitution is set up to keep these type of politicized things from happening,” Kerry Gooch, executive director of the Kansas Democratic Party, said in an interview with The Daily Signal, adding:
We as Kansas Democrats like our judges to not be political, and we hate the fact that Governor Brownback and conservative lawmakers have tried to change that. That makes it hard for the court to do its basic job, which is to follow and enforce the law, and not take into account public opinion, feeling, and emotions.
The Kansas Democratic Party has not taken a formal position on the retention elections, Gooch said, because party leaders don’t think it’s appropriate for a political body to influence the judiciary.
“We as Kansas Democrats like our judges to not be political,” says Kerry Gooch of @KansasDems.
Conservatives, however, argue that the current system for selecting judges isn’t fair.
Lawyers who belong to the Kansas Bar Association select five of the nine members of the nominating commission. The other four members must be nonlawyers selected by the governor.
The Republican-led state Senate has twice voted for a constitutional amendment that would change the judicial selection system to be like the one at the federal level, so that the governor appoints justices and the Senate confirms them. Those measures failed in the House.
Jeff King, a Republican who is Senate vice president, contends that unless the selection system changes, politicians like himself are not wrong to involve themselves proactively in judicial elections and to make the public more aware of court decisions.
“It’s healthy that the public has more information about the influence that the Supreme Court has on their daily lives,” King, who is retiring, told The Daily Signal in an interview. He added:
I would rather have something else than the politicized retention elections we see now, but our system doesn’t allow for anything else to allow the broader voice of 2.9 million Kansans to be heard. This is not about one justice. It’s about taking the system we have in Kansas and making sure it works vibrantly and is representative of the people’s will.