Changing the Constitution is the Last Gasp

MainStream and others are testifying today in Topeka to protect the Kansas Constitution from last gasp maneuvers by extremists.

In 2016, when Kansas political extremists held the Governor's seat, and enjoyed favorable winds in both chambers of the Legislature, they still found it impossible to cut public school funding as much as they wanted to. That year, there was a major push from extremists and their supporters to punish Kansas Supreme Court Justices who ruled to protect schools from drastic cuts. They deployed a well funded campaign telling voters to reject judges up for retention on that year's ballot.

That push failed. MainStream canvassed that summer against removing judges as a political strategy. When the election came, all the judges were retained.

In 2018, they tried a different tactic, this time an amendment to the Kansas Constitution that would remove the Court's oversight of public education. It, too, failed, as a previous push had in 2005.

When extremists are turned away by the will of the people, then turned away by the rule of law, they resort to a last gasp tactic: change the ultimate authority, the Kansas Constitution.

The politics of an amendment

The politics of constitutional amendments are tricky. While it takes two-thirds of each Legislative Chamber to get a constitutional amendment out the door, it only takes 50% of voters to then pass it on the ballot. And that ballot can be either for a primary or a general election. You already know that primary elections turn out the most engaged of voters, the base that extremists rely upon. And to complicate matters further, political promises can be made about primary opponents (or a lack thereof) to secure legislative votes for passage.

MainStream will be sure to keep an eye on that sort of shenanigan, and we'll bring it to your attention.

In the meantime, at a Special Committee on Judiciary hearing over the last two days (yesterday and today), legislators are hearing from proponents and opponents about amending the constitution on several matters. The two we are concerned with are changing how Supreme Court Justices are selected, and limiting reproductive freedoms. Here's a little background on both.

Judicial Selection

We outlined the history of this issue above. KS Sen. Ty Masterson (R-Andover and *M 0%) has pushed for years to change how Kansas selects Supreme Court Justices. Why? Because he dislikes how they have ruled on issues dear to him, including public education funding and abortion. Can't change the law? Change the judges!

Kansas selects these judges by merit. A panel of people knowledgeable about the law, drawn from across the state and appointed in a non-partisan manner, selects candidates and presents the Governor with three. The Governor then chooses one to sit on the Supreme Court.

This is how we used to select judges for the KS Court of Appeals, too, but Brownback got that changed. Now the Governor selects someone, and the KS Senate (which has been held by Democrats once since 1913) must approve. Extremists like Sen. Masterson want this to apply to Supreme Court justices, too. This is referred to as the Federal model, as it is how it is done there.

This is an overtly political model, as we have seen only too well at the Federal level. It produces a Court beholden to political positions, and delegitimizes the impartiality of our judicial system.

MainStream stands firmly against changing how we select Supreme Court Justices in Kansas. (As did Kansans when they instituted the merit system in 1957 after the Triple Play scandal.) At the hearing, there were so many opponents to this and other matters, that we were asked to speak on the day saved for proponents, people in favor of changes. Our Board President, Ed Peterson, did so, and delivered this testimony in person. He told us afterwards that there was just one proponent of this judicial selection change, someone paid to be there by an extremist think tank.

Reproductive Freedom

Last year, the Kansas Supreme Court delivered a ruling in a long awaited case, Hodes & Nauser, MDs, P.A. v. Schmidt (Derek Schmidt is the Kansas Attorney General, an elected position). The ruling said, in no uncertain terms, that the Kansas Constitution protects the rights of women to control their own bodies, and practice reproductive freedom. They found it protects the right to have an abortion.

The "pro-life" extremists were aghast. Kansans For Life (KFL), the banner carrier on this issue, promised action. But a proposed amendment to the Kansas Constitution never saw much support in last year's legislative session. KFL even came out saying it was the wrong proposal at the wrong time.

It seems that the right time is 2020.

This week, the Special Committee on Judiciary is hearing from proponents and opponents to changing the Kansas Constitution in response to the Hodes decision. Opponents, including MainStream, are being heard today. MainStream submitted written testimony that you can read here, and supports our partners who are speaking before the committee.

The politics of the amendment proposals will be interesting. We expect it to be written in a way that seems either innocuous, or confusing. You know that some ballot measures can be deceptive, leading to messaging that twists itself into knots, resulting in something like "Vote NO to support education!" We expect this to be similar. An amendment passed in Tennessee in 2014 may provide an example. Their amendment stated that "Nothing in this Constitution secures or protects a right to abortion." This language does not ban abortions outright, but does remove inherent protections found to exist by the Tennessee Supreme Court in a decision in 2000, just as has happened in Kansas last year.

An amendment like this would not change the ability of legislators to create policy around reproductive rights, but it would remove the Constitution as an argument to counter any restrictions. That's a sort of nuanced distinction. We can imagine a campaign from KFL along the lines of "Voting YES does not ban abortions, it just gives Kansans the right to decide about abortion through our laws."

What can you do?

As ever, your state legislators need to hear from you. We are very sure an abortion-related amendment will see a vote in next year's Kansas Legislature. Sen. Masterson is very keen on changing how judges are selected, and believes he has the votes in the KS Senate for an amendment. There will be a lot of pressure placed on legislators, especially Republicans, to support either or both of these measures, including threats of a primary fight if they don't comply.

See how your legislators scored on issues important to you, and let them know how you feel about that.

Do more than vote.

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