Two Ballot Measures to Watch in August

On August 4, Kansans will vote on a proposed constitutional amendment to adopt judicial elections for their state supreme court justices. Since 1958, the state has used a “merit selection” system in which a commission nominates supreme court candidates for the governor’s final decision.

The same day, next door in Missouri, voters will consider an amendment that would make citizen initiatives more difficult to pass.

In different ways, both measures tell a story of legislatures seeking to exert greater control over their states’ constitutions — reflecting conflicts that have become higher stakes as abortion and other significant rights fights increasingly play out in the states. Here are some key things to know.

Kansas’s judicial elections amendment comes after more than a decade of efforts by the legislature to assert more control over the state high court. It’s an issue I’ve followed for a long time: I represented a Kansas judge in a 2015 lawsuit successfully challenging a state law that would have weakened the court’s budgetary and administrative authority.

At that time, much of the conflict between the court and the legislature turned on education funding, as the state supreme court issued a series of rulings that the legislature’s funding scheme had fallen dramatically short of state constitutional requirements. Even then, the legislature regularly introduced bills targeting how justices are selected — but efforts to put an amendment on the ballot consistently fell short.

Today the arguments revolve around abortion. In 2019, the Kansas Supreme Court ruled that the Kansas Constitution independently protects abortion rights. Three years later, Dobbs v. Jackson Women’s Health Organization overturned the federal constitutional right to abortion, making Kansas’s constitution the only remaining source of protection. Weeks after Dobbs, Kansas voters rejected a constitutional amendment to eliminate abortion rights, which had been proposed by the legislature in response to the 2019 decision. After the amendment failed, Kris Kobach, who currently serves as state attorney general, called for a new judicial selection system as a way to “slowly and quietly” put antiabortion justices on the bench.

As my Brennan Center colleagues Michael Milov-Cordoba and Douglas Keith recently explained, the Kansas measure is structured to give the legislature substantial influence over the court’s composition. It leaves state lawmakers with broad discretion over how to structure supreme court elections, including whether to make them partisan or nonpartisan — and districted or statewide — opening the door to gerrymandered judicial districts and more. It also sets the stage for a wave of special interest spending on judicial elections in the state. (Post-Dobbs, state supreme court elections have repeatedly shattered spending records.) All told, the amendment would likely leave a quick and dramatic imprint on the state high court and its approach to state constitutional rights.

The other ballot measure to watch on August 4 is in Missouri. Unlike in Kansas, where only the legislature can propose constitutional amendments, the Missouri Constitution also provides for a citizen initiative process. This process has been widely used in Missouri, where a gerrymandered legislature has often been at odds with public preferences. Recent amendments have included marijuana legalization, Medicaid expansion, and, in 2024, an abortion rights amendment that overturned one of the strictest abortion laws in the country. (On the ballot this November is a legislatively referred amendment seeking to reinstate an abortion ban and eliminate abortion protections from the state constitution.)

Under current law, initiatives need only pass by a simple statewide majority of votes. However, as University of Kansas School of Law Professor Stephen McAllister has explained, the Missouri legislature has proposed amending the state constitution to require any citizen initiative amendment to pass in every one of Missouri’s (gerrymandered) congressional districts.

The result would be a dramatic shift in power toward the legislature to define the scope of Missourians’ constitutional rights. An analysis by Bolts found that all five citizen initiatives approved by voters since 2020 would have failed under the new amendment. Notably, legislatively referred amendments would continue to require only statewide approval.

It’s perhaps not surprising that as states increasingly find themselves battlegrounds for constitutional rights, fights over who decides those rights are becoming even fiercer. The results in Missouri and Kansas will be important markers of how voters respond to efforts by lawmakers to tilt the balance toward state legislatures.