Information Relevant to Opposition of
Proposed Constitutional Amendment, August 4, 2026 

Position Primary Amendment on Supreme Court Justices

BASIC INFORMATION ABOUT  CONSTITUTIONAL AMENDMENTS  AND BALLOTS  

INFORMATION ABOUT SECTIONS 5, 8, AND 15 AS THEY HAVE APPEARED FOR MANY YEARS

About Section 5

Why did voters amend the Constitution in 1958 to elect Supreme Court justices rather than select them through a merit-based system? 
In general elections from 1861 through 1957, all district judges, appellate judges, and Supreme Court justices were elected in partisan, statewide races. But the public had become concerned about the selection process for the justices of its highest court. People questioned whether local voters had enough information about the casework and the statewide candidates; they questioned the qualifications of some candidates; and they questioned the independence of the justices in a judicial environment that had become increasingly politicized after decades of direct elections. A merit-based selection system was chosen by the voters to help ensure that justices would be  selected for their relevant qualifications and not because they raised the most money and had excellent political skills and contacts.  
  
Does Section 5 provide details about how our merit-based system must work?
Yes. Section 5 includes a number of requirements intended to ensure there is an investigative process that ends with three qualified people being presented to the governor for one open position; and with the governor being required to appoint one of the three. Section 5 sets out a road map for a Supreme Court Nominating Commission that is directed by the Kansas Constitution to complete this investigative process.

1. An applicant sends the commission a written application for an open justice position.  An applicant has to be an attorney licensed in Kansas who is in good standing, is between 30 and 75 years old, and has practiced at least 10 years as a lawyer, a judge, or a full-time teacher at an accredited law school;
2. The nonpartisan commission investigates the applicants and sends three of them to the Governor, who has 60 days to appoint one of the candidates to the open position.
3. Should the Governor decline, one of the three is appointed by the Chief Justice.
4. A vacancy position for the remainder of an uncompleted term will be filled in the same way.

Who is on the nominating commission?
There are nine members:  one lawyer and one nonlawyer from each of the four Kansas congressional districts, plus a lawyer who also chairs the commission.  The four nonlawyer members are appointed by the Governor.  The chair is elected by licensed lawyers statewide.  Each of the other four lawyers is elected by the licensed lawyers within that congressional district.  They are all limited to two four-year terms

Are the voters involved in this merit-based selection process?
Yes. The public may choose to be involved both during the selection process and after a justice is appointed.

Before the commission selects three candidates.The commission announces when it will be accepting nominations and releases the names of the applicants.  The commission is subject to the Kansas Open Meetings Act, and the commissioners must meet in open sessions announced in advance. Applicant interviews are open to the public and livestreamed and recorded for viewing. The interview schedules and applicant biographies are published online. The names and locations of the commission members are published, and people may correspond with any member by regular or electronic mail. The three candidates are publicly announced, and the governor has 60 days to decide, during which time the public may contact the governor’s office about the candidates.  

Voting whether to retain a new justice after one year. The Kansas Supreme Court completes work on more than 1,000 cases each year. The way each justice voted is included in the record of a case. The opinions in significant cases are published.   A new justice who has voted in the majority on a decision might even be assigned to write the opinion. A  new justice who is in the minority is free to write a dissent in opposition to the majority decision.   After a  year, the voters will have a written record of the new justice’s performance, from which the voters can decide  whether or not the governor’s appointment of that justice is acceptable.  At the first general election after a year of service, the new justice will be on the ballot for a retention vote. 

A subsequent retention vote. If retained by the voters after the first year, the justice will again be on the ballot for a retention vote every six years.  

Do other states use a merit-based system?  
Yes.   Kansas is among 21 states, plus the District of Columbia, that use an  “assisted appointment” process for their supreme court justices.  In all these jurisdictions, the appointing authority (usually, the governor) is assisted by a nominating commission or board, which investigates applicants and submits a list of names from which the appointing authority must choose.    That justice then is subject to periodic retention elections. Kansas is the only one of those states that has a majority of lawyers on its commission. No state has ever reverted to direct elections after installing an assisted appointment process.   

About  Section 8

Has the Constitution always prevented justices from engaging in political activities?  
A version of Section 8 was ratified by Kansas voters even before statehood.  It was first ratified in 1859 when a constitutional convention met in Wyandotte County (the “Wyandotte Constitution”). Upon obtaining statehood in 1861,  this prohibition was ratified again, as part of the Kansas Constitution. The strict terms that prohibit sitting justices from engaging in political activities have never wavered due to political winds.  

About Section 15

Section 15 gives the Supreme Court Nominating Commission the authority to certify to the governor that a justice is too incapacitated to continue, thus permitting the justice to be retired from service.

WHAT HAPPENS IF YOU VOTE:

"YES"

1. The amendment eliminates of Section 5 provision for merit-based selection and substitutes a single paragraph. It says only that the seven justices will sit in separate “positions” and their terms will be staggered. To stay in office, our currently sitting justices must run for election from “positions” 1, 2, and 3 in 2028. Those in positions 4 and 5 must run for election in 2030. Those in positions 6 and 7 must run for election in 2032. All of those elections will be open to contested races, and there will be a new election for each position after six years.    Vacancies for unexpired terms also will be filled by election. 
2. Beyond that, the proposal gives no information to  August 4 voters about how the legislators intend to run the elections.  It only says that the details will be “as provided by law.”  Presumably, that at least means new laws the legislators pass during their 2027 legislative session, since the first elections would be in 2028.  The proposed new constitutional requirements are so minimal that the Legislature will have a virtual free hand to change or add to these laws from one legislative session to the next, without voter input.
3. The proposal requires citizens who vote  ”Yes”  on August 4 to do so without knowing basic facts that might likely have affected their vote.   Such as:  will elections be partisan or nonpartisan? Will elections be statewide, or will there be a “voting district” for each of the seven positions? If there are to be “voting districts,” on what basis will they be drawn? Will the legislators provide for term limits?  
4. There will no longer be constitutional restrictions on a justice’s political activities. There will be nothing in the Constitution to prevent a sitting justice from also holding office in a partisan party or organization.   There will be no constitutional curbs on how a justice spends money or time while campaigning for reelection. And justices will no longer be prohibited from directly or indirectly receiving “dark money” or open contributions, whether solicited or unsolicited, from any individual,  business entity,  or any political party or organization.    

"NO"

1. Section 5 will not be deleted or replaced. The commission members will continue to investigate individual applicants. They will look at an applicant’s legal and judicial experience, education, character, ethics, temperament, community service, impartiality, and the degree of respect the applicant has earned from colleagues and adversaries. Then, the commissioners  conduct public interviews of the applicants and,  by a majority vote, nominate three of them from which the governor must appoint  the new justice. After a record of one year of service, the voters will decide whether the new justice should be retained. Another retention vote will be held at the end of the six-year term, should that justice seek to be retained for another six years. 
2. Section 8 will continue, as it always has, to prohibit fundraising and all other partisan political activities by Supreme Court justices.
3. Section 15. The commission still will be authorized to certify to the governor that a justice is too incapacitated to continue (rather than requiring a justice’s own colleagues to investigate and vote on  such certification), in order that an incapacitated justice may be retired from service. 

WHY THE JOHNSON COUNTY LEAGUE OPPOSES THIS AMENDMENT

Section 5, for almost 70 years, has helped ensure that Supreme Court applicants are investigated and selected, not only on the basis of their legal excellence but also on their community record of character and integrity. Section 8, for more than 165 years, has helped ensure that the judicial independence of Supreme Court justices will be sheltered from partisan politics.   

The voters were wise in 1958 to demand a selection system that would emphasize a candidate’s merit rather than a candidate’s political ties and campaign rhetoric.   They had good reason to vote for a merit-based selection system because they had seen the bad results that accumulated over years of electing justices. Those same concerns are alive today in a politically polarized atmosphere made worse by the breadth of instant electronic misinformation and the other dangers of social media.   

The protections of Section 8 began even before the ink was dry on the Kansas Constitution.   The voters knew in 1861 that the justices needed to be shielded from political activities. There always will be those with enough wealth or political power to  influence or even direct the outcome of an election.    It is naïve to think elections for Supreme Court justices would be immune.    Kansas Supreme Court elections would not escape those with the motive, the means, and the opportunity to interfere with the justices who control the most important cases that affect all Kansans.

From the beginning of statehood, and for the public good, the Supreme Court is the only court authorized by voters to make final interpretations of the Kansas Constitution and resolve constitutional and other nationally significant cases. For individuals and entities who are enmeshed in civil and criminal litigation, the Supreme Court is our court of last resort. 

Voting NO on this amendment is in the best interest of all who expect two things from our highest court: 1) That our justices are selected for their personal integrity and temperament, as well as for their legal skills and experience; and not for their political and campaigning skills and contacts.  2) That our justices are free to fairly and intelligently resolve our most difficult and controversial cases and controversies,  without fear of economic or partisan interference.