Kansas voters foiled state Republicans’ latest scheme to snatch back their abortion rights Tuesday, as they voted down a constitutional amendment to change how state Supreme Court justices are chosen.
The race was called fairly early in the night by CNN, the New York Times and the Washington Post (the latter two making their calls based on data from the Associated Press). With 60 percent of the vote in, the “no” side has 63 percent of the vote to the “yes” side’s 37.
Republicans have long seethed about this court thwarting their political goals — namely, forcing the legislature to adequately fund public schools in a series of rulings in the mid-2010s, and ruling that the state constitution protects the right to abortion in 2019.
The reason that the Supreme Court in such a red state doesn’t move in lockstep with the Republican legislature is its nominating process, known as a “merit-based” system. An independent commission, composed of five lawyers put on the commission by other lawyers and four non-attorneys picked by the governor, chooses candidates to interview for the vacancy from a pool. The commission then nominates three of those candidates, and the governor picks the winner.
Republicans, heavily funded by outside groups — including those tied to the Federalist Society’s Leonard Leo — were pushing to do away with that system and to allow the legislature to shape a still-unwritten law for voters to cast ballots for justices directly. They were gambling that a move to partisan elections would infuse the process with money, party involvement and less independent judges, a benefit to them in a Republican state. North Carolina Republicans were successful in the same endeavor: They switched to partisan elections in 2018, won a majority on the state Supreme Court after the 2022 midterms and quickly got results, including an about-face on gerrymandering.
Kansas Republicans have cloaked this goal in paeans to democracy, a break with the lawyer- and smoke-filled rooms in favor of a transparent, voter-driven process. In reality, the current process is remarkably open to observers, with the commission’s candidate interviews even being livestreamed. Candidates must also provide extensive personal information, including credit reports and the names of lawyers and judges with whom they’ve worked. Voters get to choose whether to retain the selected justice a year after the governor’s selection, and every six years after that.
Republicans have been fighting to ban abortion in the state ever since that 2019 court ruling preserving it (And they’ve been trying to bully the court into submission for even longer; after the school funding rulings, the legislature threatened to remove the Supreme Court’s jurisdiction over lower courts and to cut off its funding). Republicans strategically put an amendment on the ballot to assert that the constitution does not protect abortion rights during what they thought would be a relatively sleepy 2022 midterm cycle. But Dobbs was handed down less than two months before, infusing the referendum vote with urgency; voters rejected the amendment by a whopping 18-point margin.
Failing to convince the voters, Republicans moved on to trying to replace the court that stymied them. Then-Attorney General candidate Kris Kobach (R) said that getting rid of the merit-based system presented “another path” to “slowly and quietly” replacing the current justices with anti-abortion crusaders, per the Wichita Eagle.
The amendment would have given the legislature extremely broad latitude to craft judicial elections, including whether they’d be chosen by districts or statewide. It would have allowed for shameless gerrymandering to ensure that Republicans’ preferred candidates win — even worse than the rankest congressional gerrymandering, which is at least governed by the requirement that districts be of approximately equal population. That requirement, stemming from the one person, one vote principle, does not apply to judicial districts.
Republicans’ railing against the anti-democratic nature of the current system takes on an extra layer of irony given how it came about. Kansas established it in 1956 in response to a so-called “triple play” scandal, in which the sitting governor lost his election, then resigned in coordination with the chief justice, leaving the lieutenant governor able to appoint him to the open seat.
