By RUSSELL ARBEN FOX
Insight Kansas
Seven months from now, on August 6, 2026, Kansas voters will see on their primary ballots an amendment to the state constitution that they can vote “yes” or “no” on:
The citizens of Kansas who are qualified electors shall elect the justices of the supreme court. The rules applicable for such elections and the designation of position numbers shall be provided by law.
The supporters of this amendment—primarily the Republican caucus in the Kansas legislature, as they were the ones who pushed to get the amendment on the ballot, but also conservative organizations like Americans for Prosperity and the Kansas Policy Institute—insist that their aim, in the words of Senate President Ty Masterson, is to “shine the light of democracy” on the selection of state Supreme Court justices, a process that is currently, “veiled by a commission.”
Kansans love the idea of transparency and choice, at least in principle. But when it comes to extending that idea to the judiciary, this claim sometimes confuses people.
Since those who serve as justices on the U.S. Supreme Court are, like every judge on the federal level, appointed for life rather than elected, it seems perfectly normal to many to see the judicial branch as entirely apolitical, so much so that I occasionally have students who are first-time voters ask worryingly as to why retention votes for state judges show up on their ballots. (When I tell them that Thomas Jefferson, responding to the unavoidably political nature of some Supreme Court decisions, was sympathetic to the idea that the House of Representatives should elect the justices rather than the president appointing them, they get even more perplexed.)
In truth, once one embraces the idea of a supposedly independent judiciary to interpret the law, every system for determining who will serve as those judges is a complicated compromise.
Kansas’s system for state judges is not unique, but it is a relatively rare combination of merit (nomination by a judicial commission, appointment by governor) and voting (elections to stay in office at the end of one’s term).
It’s an approach shared, in one form or another, by 17 other states. Not that straightforward elections are employed by all the rest; only 21 states allow voters to choose their state Supreme Court justices directly.
Ultimately, the methods of choosing justices, on any court level, vary greatly from state to state—and there is no clear evidence that one method is always better in terms of judicial trust, fairness, and accountability than any other.
Former Kansas Chief Justice Lawton Nuss is one of those who has criticized the amendment, calling the election of state Supreme Court justices a “really bad idea.”
He is joined by numerous state organizations, many of which point out that the arguments for the amendment made by the Republican majority in Topeka often just focused on electing judges who would overturn past rulings on abortion and education, rather than principled concerns about democracy.
I would just add that it’s important to note that the amendment says nothing about the “rules” of the “elections” that “shall be provided by law.” Most of the states that hold elections for their state justices require those elections to be nonpartisan. Others require them to be held by district throughout the state.
Without any such language, one should probably assume that whatever elections emerge from the amendment will be state-wide, majority-driven, and partisan. Something to keep in mind before next summer’s vote.
Dr. Russell Arben Fox teaches politics at Friends University in Wichita.