November election to decide Kansas Supreme Court climate, constitutional amendments

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Six Kansas Supreme Court justices up for retention; two constitutional amendments proposed

TOPEKA — In November, six of Kansas’ seven Supreme Court judges are up for retention votes, and two constitutional amendments will be decided.

Advocacy groups say these choices on the November ballot offer voters an opportunity to shift Kansas’ political landscape.

One state constitution amendment focuses on reducing the governor’s executive power and the other on protecting the elected position of sheriffs across the state. The amendments have been criticized for pushing partisan agendas by the American Civil Liberties Union of Kansas, but some legislators and law officials say more oversight of executive agencies is needed.

The proposed legislative veto

The Kansas Legislature currently has the ability to overturn executive rules and regulations by a two-thirds majority vote and a signature from the governor. This amendment would change that, authorizing the Legislature to revoke or suspend policies from the state executive by a simple majority vote, with no governor signature required. The amendment would shift power away from the governor and toward the legislature. 

Critics say the amendment is a reaction to Gov. Laura Kelly’s policies. Attorney General Derek Schmidt, who is running against Kelly in the race for governor, first proposed it in February 2021, following Kelly’s decision to temporarily close schools at the beginning of the COVID-19 pandemic. Schmidt has used Kelly’s handling of the pandemic as a key part of his platform during his gubernatorial campaign, saying her pandemic-era lockdowns and mandates hurt Kansas students. 

“A legislative veto would enable the Legislature to reject specific agency rules and regulations in a targeted manner, acting as a check-and-balance over regulatory sprawl and making the Legislature itself more accountable to the people of Kansas for how agencies use the power the Legislature has given them,” Schmidt said in release supporting the amendment. “This is a victory for regulatory accountability and citizen control of state government, and I am hopeful Kansas voters will approve the proposed amendment in November.”

If Kelly is reelected and the amendment passes, the Republican-dominated Senate and House would have veto power over any executive branch action, including power over the state agencies under Kelly’s jurisdiction. 

Amii Castle, a constitutional law professor at the University of Kansas, said during a League of Women Voters of Johnson County discussion the proposed amendment had worrying implications.

“This amendment, if passed, would take the governor completely out of the equation,” Castle said. “And so that if 51% of our legislature decides that they want to revoke that regulation, they can do it with a simple majority. Fifty-one percent and it never goes to the governor. There’s no veto power. So it’s basically taking power from the executive branch, those administrative agencies that the governor oversees, taking power from the executive branch and giving it to 51% of our state legislators.”

Micah Kubic, executive director of the ACLU of Kansas, said the amendment threatened constitutional rights, and would create a dangerous power imbalance. 

“What this really does is set up a permanent state of conflict and chaos between the governor, whoever they are, and their ability to implement laws and the legislature in perpetuity,” Kubic said. “I think that is really a sign of instability and creates uncertainty in the state government in a way that I think is really, really dangerous for democracy.”

The Kansas Supreme Court ruled against a similar measure in 1984 that would have allowed the Legislature to suspend or revoke administrative rules, calling it unconstitutional and a violation of the separation of powers. 

Sheriff election and recall proposal 

The amendment on the Kansas county sheriff election and recall could help keep controversial Johnson County Sheriff Calvin Hayden in his position. The amendment says counties that elected sheriffs in January 2022 can continue to elect sheriffs — meaning the sheriff’s position would be fixed as an elected position, instead of an appointed position for all but one of Kansas counties. 

The amendment comes after discussion about making the sheriff’s position appointed in Johnson County, following some of Hayden’s actions. Hayden is leading a criminal investigation into alleged election fraud in the 2020 elections, and has also said he would form an “army” of his employees to defend Kansans against the Internal Service Revenue if needed. 

The amendment also stipulates the county sheriffs can only be removed from office by a recall election or if the attorney general challenges their right to hold office. Schmidt has supported the amendment, saying the sheriff’s office had “deep historical roots,” in April, when the amendment was voted on by the Legislature. 

Under the current Kansas system, district attorneys, along with the attorney general, can initiate legal proceedings if they believe there’s been misconduct in the sheriff’s office, with a judge ultimately deciding whether or not there has been misconduct. The amendment would take away this power from all 104 district attorneys in the state, leaving only the attorney general with the ability to investigate misconduct. 

Castle said the amendment can lead to abuse of power, since the attorney general could play favorites and not investigate sheriffs they liked. 

“It puts the power with the person who sits in Topeka for most days,” Castle said. “The only person who has power to initiate an investigation into a sheriff will be solely with the attorney general, and it will take away power from our local district attorneys to even initiate an investigation into a sheriff.” 

Hayden supports the amendment, saying voters should be able to choose their elected officials. 

“The politicians want to get rid of the sheriff’s position because we’re in the way,” Hayden said during a September meeting on election fraud. 

Retention of judges 

Kansas currently operates a merit-based Supreme Court judicial selection process, in which a nine-person panel nominates candidates and sends them to the governor, who makes the final selection. After the judge serves for a year, the public votes in a general election whether or not to keep them in the position. If the judge is approved, they serve for six years on the Supreme Court. 

In the November election, six of the seven Supreme Court justices are up for retention, and seven of the 14 Kansas Court of Appeals judges are up for retention. 

The state Supreme Court voted to uphold abortion rights in 2019, when a majority hearing the case ruled the Kansas Bill of Rights protected the right to an abortion. Pro-life activists are now campaigning to unseat these judges and create an anti-abortion court. 

“The big money that you will see mobilizing trying to get people to fire the Kansas Supreme Court is 100% about abortion and about the right to choose,” Kubic said. “Various real people in real life may be upset about different things. But the folks that were organizing and mobilizing and raising millions of dollars to try and defeat them, their only interest here is on the abortion issue.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: Follow Kansas Reflector on Facebook and Twitter.

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