A summer ballot measure in Kansas four years ago showed the enduring popularity of abortion rights even in deeply red states, and started a trend of ballot measures to defend them.
Next month, Kansas will again vote on a measure with consequences for abortion — as well as for L.G.B.T.Q. rights, congressional redistricting and other hot-button issues. But none of those words will appear on the ballot.
Kansans this time will decide whether to elect their state’s supreme court.
Frustrated by the appointed court’s decisions, especially on abortion, Kansas’ Republican-controlled legislature put a measure on the Aug. 4 primary ballot to abolish the current system under which the governor — since 2019, a Democrat and supporter of abortion rights — chooses justices from a list submitted by a nine-member commission of lawyers.
Republicans see this as their best hope to finally overturn a 2019 Kansas Supreme Court decision that recognized a right to abortion in the state’s Constitution, a decision affirmed by voters in 2022 when they declined to overturn it.
The state has become an abortion access point for women from the South in the four years since the U.S. Supreme Court declared that the federal Constitution does not protect a right to abortion. Planned Parenthood, the state’s largest provider, says its affiliate there has seen a 700 percent increase in abortions since Roe v. Wade was overturned, well outpacing the national rates. Some 75 percent of women have come from out of state.
Opponents and backers alike say that if the measure passes, it could inspire similar moves to elect courts in other red and purple states where nonelected supreme courts have blocked Republican efforts to ban abortion or gender transition treatments, and to abolish independent redistricting commissions.
With conservatives dominating the U.S. Supreme Court, national and local groups that support abortion and L.G.B.T.Q. protections have tried to secure those rights under state constitutions.
Conservatives are trying to short-circuit those efforts.
“There is a real desire to bring back some accountability to the judiciary,” Kris Kobach, the Kansas attorney general and a longtime opponent of abortion rights, said in an interview. “It’s not just about abortion. It’s about this whole panoply of potential areas where plaintiffs can ask a state supreme court to create a new liberty interest that is far broader than anything created in the U.S. Constitution.”
Even before the Kansas court’s decision on abortion, Republican elected officials in the state had bristled against a ruling that required the legislature to spend more on public schools.
Backers of the ballot measure argue that nearly half the states elect their supreme court justices. But the United States is extremely rare in electing judges at any level, and opponents of the measure say that doing so puts the court up for sale to the highest bidder.
An election to decide a swing vote on abortion in the Wisconsin Supreme Court in 2023 became the most expensive judicial election in United States history, with $51 million spent. Two years later, an election for another seat on that court broke that record, with $100 million spent.
Abortion rights groups say Republicans are looking to ban abortion against the wishes of the state’s voters.
“Voters resoundingly rejected the push to end abortion rights in the state Constitution, so they have to come up with another tactic,” said Emily Wales, the president of Planned Parenthood Great Plains Votes, which is fighting the amendment.
The current judicial appointment commission is made up of nine members, including one lawyer and one nonlawyer from each congressional district. The state bar association elects the lawyers, as well as another lawyer to lead the commission, and the governor appoints the nonlawyers.
The governor fills vacancies on the court from a list put forward by the commission, and the new justices then face retention elections after a year, and every six years after that. Backers of the ballot measure note that no justice has ever lost a retention election.
“The reason no one ever loses is there is no opponent who has an incentive to raise money,” Mr. Kobach said. “Most members of the public have never heard of who’s been on the Supreme Court because they’ve never seen an advertisement or heard any deliberation about whether this is a good justice or not.”
Opponents of the ballot measure argue that the current system was designed to make sure that the court reflected the entire state, and that elections would deny a voice to less populated areas.
“This is a system that Kansans developed specifically because of concerns about political gamesmanship in the courts,” Ms. Wales said. “When the court is not making headlines every day, that means the court is calling balls and strikes the way they should. They have held both parties accountable, and they have remained true to the Constitution.”
The ballot measure in August 2022 asked voters to declare that there was no constitutional right to abortion, which would have effectively repealed the court’s 2019 decision saying there was.
Abortion opponents hoped that putting the measure on the ballot in the summer, when historically turnout is lower, would smooth its passage. Instead, voters outraged by the U.S. Supreme Court’s decision to overturn Roe six weeks earlier defeated the measure by an 18-percentage-point margin.
Mr. Kobach, then running for attorney general, called for the legislature to put an amendment on the ballot to elect judges, telling anti-abortion activists it was the best path to “slowly and quietly” affirm justices who would overturn the 2019 ruling, allowing a ban the legislature had passed to go into effect.
The 2022 measure in Kansas inspired abortion rights supporters in a dozen other states who have used ballot initiatives to establish or protect a constitutional right to abortion, overturning near-total bans in states including Missouri and Ohio. Courts in Utah and Wyoming have blocked abortion bans, citing protections in their state constitutions. In Utah, the court has also upheld an independent redistricting commission passed by voters, prompting the Republican legislature to remake that state’s judiciary system.
Kansas switched from a system of elected justices to the appointment commission after a notorious scandal known as the “triple play” in 1957. The state’s chief justice, an ally of the governor, resigned from office claiming health issues. The governor, who had just lost his primary bid for re-election, followed suit. Then the lieutenant governor was sworn in as governor and promptly named the former governor as chief justice in his only official act of a two-week tenure.
The system Kansas adopted is known as the Missouri Plan, after that state’s system. Now, however, Missouri is among the states that have proposed ballot measures like the one in Kansas to move to elected courts.
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