This year, five of the seven state Supreme Court justices are up for a retention vote. A committee of lawyers and non-lawyers nominates three candidates for an open position on the court, and the governor decides which of the three to appoint. It’s a system that helps ensure the court has a qualified judiciary and minimizes the political influence on the state’s judiciary.
The justices are held accountable through the retention election process. Every six year, the judges are up for a retention election, with the voters deciding whether or not to retain them. Since 1958, when the selection process was put in place, no justice has been voted out of office. However, this year, well-funded groups are determined to break that trend.
The money behind Kansas’ judicial elections is part of a growing national trend making state Supreme Court races increasingly political. It’s a trend that both those who support and oppose it says help holds judges accountable to those who support their reelection. Those who oppose it say it’s a trend that threatens judicial independence.
Across the country, state Supreme Court races have become increasingly politicized, a trend that supporters say helps hold judges accountable for legislating from the bench and critics call a threat to judicial independence.
The Brennan Center for Justice at the New York University School of Law, who has been critical of special interest influence in judicial races, reports outside groups and parties spent nearly $24 million on Supreme Court contests during the 2012 election cycle, about twice as much as the two previous cycles combined. Unlike megabuck federal elections, as little as a few hundred thousand dollars can swing these races, giving donors more bang for the buck.
Most of the attention has focused on states where voters elect justices, but this cycle, the interest has turned to the 20 states where governors appoint judges and voters only get to decide whether they’re retained.
Their efforts have been working. Three justices in Iowa were unseated after making a ruling that legalized same sex marriage. The judges were targeted in their retention bid by a group of organizations that included the National Organization for Marriage and the American Family Association.
Who’s behind the Kansas vote? A loophole in Kansas election laws makes it impossible to determine exactly who’s is the money behind these judicial races. However, four former governors – both Democrat and Republican – have come out in support of retaining the judges. While the money behind the ouster campaign isn’t clear, Gov. Sam Brownback and conservative members of the Kansas Legislature have been very vocal in their opposition to the judges.
Why the Opposition?
The opposition to the justices is primarily around two issue – the justices’ vote on school funding and a ruling they made in the Carr Brother’s case. Many people are aware of the fight between the justices and the Kansas legislature over school funding. The Supreme Court ruled the school funding method approved by the Kansas Legislature is unfair and doesn’t adequately fund Kansas schools. Earlier this year, the Supreme Court threatened to close down the state’s schools unless the Legislature approved a better funding method.
Less straight forward is the disagreement between the court and a group that feel they were too lenient in a death penalty ruling regarding the Carr Brothers—who were found guilty of killing four people in terribly horrific 2000 Wichita incident. According to those who opposed the judges, in 2014 the judges chose the rights of the murderers over the victims, when they vacated the Carr’s death sentences.
The ruling came as the result of an appeal by the Carr’s defense attorneys. They claimed the jurors were not given proper instructions and that the trial and sentencing should have been tried separately.
In vacating the ruling, the justices agreed the brothers should not have been sentenced together. The case was appealed to the U.S. Supreme Court overturned the Kansas Supreme Court. In the meantime, Kansas prosecutors had changed the way they give instructions to jurors.
The Kansas justices ruling in no way meant the Carr’s would be released, but that doesn’t stop those who opposed the justices from being offended by their actions.
Liberal versus Conservative
Four of the five justices up for retention are considered to “liberal” since they were appointed by Gov. Kathleen Sebelius or moderate Republican Bill Graves. The other judge, appointed by Gov. Brownback isn’t being opposed by any group.
If the four judges are ousted, Gov. Sam Brownback will be able to appoint judges who he hopes will be more supportive of his stances on issues.
The attempt to oust the judges at the ballot box have come after several attempts by conservative Republicans in the State legislature to limit the judge’s power through legislation.
First, the legislature passed a law stripping the State Supreme Court of administrative power over lower state courts. Then, they passed another law that stripped the state’s entire court system of funding if any court struck down any part of the previous law.
Untethered, the State Supreme Court ruled the first of the laws unconstitutional on the grounds that it usurped the “general administrative authority” given to the courts by the state constitution. Because of the second retaliatory law, this ruling jeopardized the judiciary’s funding.
However the legislature caved in on the second law reversing it during the 2016 Legislative session, but they still weren’t finished. The Kansas Senate voted on a bill setting a very vague list of grounds for impeachment of judges.
Another group also working behind the scenes on this vote is Kansans for Life, the anti-abortion group who also could benefit from a more conservative judiciary.