Kansas Vote Could Lead to Wisconsin-Level Spending in Judicial Elections 

The world’s wealthiest person, Elon Musk, famously spent over $55 million one year ago in an election for a single seat on the Wisconsin Supreme Court. The race shattered spending records, and it was likely just a glimpse into what state judicial races will look like as national political attention on these courts grows. For the last several cycles, outside interest groups have poured more and more money into judicial elections across the country, transforming many of them into to something resembling the most competitive gubernatorial and senate races.

Despite all this, Kansas legislators have put forward a ballot measure that would open the door to Wisconsin-level spending in the state by replacing Kansas’s commission-based appointment system for justices with judicial elections.

Kansas established its current system following a scandal in 1956 involving self-dealing by the governor, lieutenant governor, and chief justice of the state supreme court. In the so-called “triple play,” the sitting governor lost his reelection and then during his lame duck period orchestrated his own appointment to the Kansas Supreme Court by coordinating with the chief justice to both resign, allowing the lieutenant governor to appoint him to the open seat.

Two years later, Kansans amended the state constitution to change how justices reach the bench. While governors still appoint justices, they must choose from candidates vetted by an independent nominating commission composed of non-lawyers and lawyers selected from across the state. Justices then stand in yes-or-no retention elections every six years.

Kansans have selected justices in this manner for nearly seven decades, an approach often referred to as “merit selection” and used by 13 other states. But that will change in August if Kansans approve the state constitutional amendment that would abolish the Kansas Supreme Court nominating commission and require justices to run in competitive elections.

The amendment follows years of conflict between the legislature and the judiciary over Kansans’ rights under the state constitution. In 2014, the Kansas Supreme Court ruled that the legislature had inadequately funded Kansas public schools in violation of the state constitution. Those rulings prompted legislators to pass laws stripping the Kansas Supreme Court of its authority over lower courts and threatening to cut off judicial funding. (The Brennan Center represented Kansas judges in litigation over these laws.) While the courts stood their ground and the legislature ultimately backed down from those threats, legislators continued efforts to undermine judicial independence into the 2020s in response to a high-profile decision halting abortion restrictions.

Recent judicial elections provide a window into what Kansans can expect their judicial elections to look like if the amendment passes. Over $100 million has been spent across all states in every judicial election cycle since 2020, fueled in part by new interest in these races from billionaires on both the left and the right. A growing share of that money has come from outside interest groups, with those groups spending more than the candidates themselves for the first time ever in the 2024 cycle. The most expensive judicial elections in history have taken place in the last few years, including the infamous Wisconsin election of 2025 into which Musk and others poured more than $100 million, making it the most expensive judicial election in history.

While supporters of the Kansas amendment might attribute Wisconsin’s eye-popping spending to its perennially purple status in the national political conversation, the rapid transformation of judicial races has gone well beyond presidential swing states. Last cycle, seven states had their most expensive judicial elections ever, including Montana and Kentucky, states with partisan compositions more like Kansas. As in Wisconsin, interest groups running ads in those states saw six- and seven-figure donations from out-of-state interests. In all, Montana saw more than $12 million in spending in its supreme court races last cycle. A retention election in Kansas already drew $2 million in spending when five justices were seeking another term on the court in 2016. Millions more would likely flow into the state’s judicial races should the amendment pass, as competitive elections tend to attract more spending than retention elections.

There is ample evidence that this kind of money in judicial elections can undermine fair and impartial courts. Judges are more likely to rule in favor of major donors and political parties that support them in election years, and are also more likely to rule against defendants in criminal cases out of fear of being labeled “soft on crime” in the next attack ad. As former California Supreme Court Justice Otto Kaus once said, deciding controversial cases with an election around the corner is like “finding a crocodile in your bathtub when you go in to shave in the morning. You know it’s there, and you try not to think about it, but it’s hard to think about much else.”

Beyond billionaires, there is a second group that this year’s amendment is likely to empower: the legislators themselves. The amendment has few guardrails on how judicial elections will operate, giving the legislature unfettered authority to set the rules. If the amendment passes, the legislators who consider the court to be insufficiently aligned with their partisan interests are the same legislators who would decide if these elections are partisan or nonpartisan, districted or statewide. If the legislature’s preferred candidates prove unable to win, nothing in the amendment would prevent the legislature from requiring justices to run in judicial districts and gerrymandering those districts to advantage their preferred candidates. Legislators in other states have already pursued this retaliatory tactic to punish courts for striking down unconstitutional legislation. Such districts could be even more aggressively gerrymandered than congressional seats because one of the few remaining federal limits on drawing congressional districts — the one-person-one-vote principle requiring districts to be of relatively equal population — does not apply to judicial districts.

During the Progressive era, when party machine politics dominated, judicial elections were put forward as a reform to promote democratic accountability because they broke up concentrations of power and redistributed it to the people. But they quickly led to state judiciaries more accountable to big donors and partisan interests than to the public. As in the Progressive era, Americans want solutions to weed out government corruption. It may be tempting to think judicial elections could be such a reform, but in a moment when voters are angry about the corrupting influence of money in politics and legislatures are engaged in increasingly aggressive efforts to gain control over state courts, a turn to judicial elections is more likely to empower interest groups and politicians than Kansas voters.

Michael Milov-Cordoba is counsel in the Judiciary Program at the Brennan Center for Justice.

Douglas Keith is a founding editor of State Court Report and the deputy director of the Judiciary Program at the Brennan Center for Justice.