A year ago, Elon Musk, the world’s richest man, famously spent more than $55 million campaigning for a seat on the Wisconsin Supreme Court. The race broke spending records and was likely just a glimpse of what state judicial races would look like as national political attention to these courts increases. Over the past few cycles, outside interests have poured more and more money into judicial races across the country, turning many of them into something resembling the most competitive gubernatorial and Senate races.
Despite all this, Kansas lawmakers have proposed a ballot measure that would pave the way for Wisconsin-level spending by replacing Kansas’ commission-based judge appointment system with judicial elections.
Kansas established its current system in 1956 in response to a scandal involving the self-dealing of the governor, lieutenant governor, and chief justice of the state Supreme Court. In a so-called “triple play,” the incumbent governor lost reelection, engineered his own appointment to the Kansas Supreme Court during the lame-duck era, and arranged with the chief justice to have both of them resign, allowing the lieutenant governor to appoint him to the vacant seat.
Two years later, Kansan amended its state constitution to change how judges sit on the court. The governor still appoints judges, but they must choose from candidates vetted by an independent nominating commission made up of non-lawyers and attorneys drawn from across the state. Thereafter, the justices stand in an election for or against Remain every six years.
Kansan has selected its judges this way for about 70 years. This method, often referred to as “merit selection,” is also used in 13 other states. But that will change in August if Kansas approves a state constitutional amendment that would eliminate the Kansas Supreme Court’s nominating commission and require judges to run in competitive elections.
The amendment comes after years of conflict between the Legislature and the judiciary over the rights of Kansan people under the state constitution. In 2014, the Kansas Supreme Court ruled that the state legislature improperly funded Kansas public schools in violation of the Kansas Constitution. Those rulings prompted lawmakers to pass legislation stripping the Kansas Supreme Court of its authority over lower courts and threatening to defund the judiciary. (The Brennan Center represented a Kansas judge in a lawsuit over these laws.) Although the courts held their ground and Congress ultimately backed away from these threats, Congress continued efforts to undermine judicial independence well into the 2020s in response to high-profile decisions suspending abortion restrictions.
Recent judicial elections provide a hint at what judicial elections in Kansas will look like if this amendment passes. More than $100 million has been spent statewide in every judicial election cycle since 2020, driven in part by renewed interest in these races by billionaires on both the left and right. An increasing proportion of that money comes from outside interest groups, and for the first time in the 2024 cycle, these groups will spend more money than the candidates themselves. Some of the most expensive judicial elections in history have been held in recent years, including the infamous 2025 Wisconsin election, where Musk and others spent more than $100 million, making it the most expensive judicial election in history.
Supporters of the Kansas Amendment may attribute Wisconsin’s eye-popping spending to Wisconsin’s perennial purple status in the national political conversation, but the rapid transformation of judicial races goes far beyond presidential battleground states. Last cycle, seven states had the most expensive judicial races ever, including Montana and Kentucky, which have partisan composition similar to Kansas. As in Wisconsin, interest groups advertising in those states received six- and seven-figure donations from out-of-state interests. In total, Montana spent more than $12 million in the last Supreme Court election. Retention elections in Kansas had already cost $2 million in 2016, when five justices were seeking re-election. Competitive elections tend to attract more spending than retention elections, so millions more would likely flow into the state’s judicial races if the amendment passes.
There is ample evidence that this type of funding in judicial elections can undermine fair and impartial courts. Judges are more likely to rule in favor of big donors and the political parties that support them in election years, and against defendants in criminal cases for fear of being labeled “soft on crime” in the next attack ad. As former California Supreme Court Justice Otto Kaus once said, deciding a controversial case so close to an election is “like finding an alligator in the bathtub when you go to shave in the morning. You know it’s there and you try not to think about it, but you can’t think about much else.”
Besides billionaires, there is a second group likely to be empowered by this year’s amendments. It’s the MP himself. The amendment has few guardrails for how judicial elections will be conducted, giving the Legislature unfettered power to set the rules. If the amendment passes, the lawmakers who the court deems insufficiently aligned with partisan interests would be the same ones who decide whether elections are partisan or nonpartisan, district or statewide. If Congress’s preferred candidate proves unable to win, nothing in the amendment would prevent Congress from requiring judges to run in judicial districts and gerrymandering judicial districts to favor its preferred candidates. Lawmakers in other states are already pursuing this tit-for-tat tactic to punish courts that strike down unconstitutional bills. Such districts could be gerrymandered even more aggressively than congressional seats. That’s because one of the few federal restrictions on drawing congressional districts — the one-person-one-vote principle that requires districts to be relatively even in population — does not apply to judicial districts.
During the Progressive Era, when party-machine politics prevailed, judicial elections were advocated as a reform to promote democratic responsibility in order to deconcentrate power and redistribute it to the people. But they soon made state judiciaries more accountable to big donors and partisan interests than to the public. As in the Progressive Era, Americans want solutions that clean up corruption in government. It may be tempting to think that judicial elections could be such a reform, but at a time when voters are angry about the corrupting influence of money in politics and state legislatures are engaged in increasingly aggressive efforts to gain control of state courts, a shift to judicial elections is likely to empower interest groups and politicians more than Kansas voters.
Michael Miloff-Cordova is an attorney in the Justice Program at the Brennan Center for Justice.
Douglas Keith is state court report Associate Director of Justice Programs at the Brennan Center for Justice.
Recommended citation: Michael Milov-Cordaba and Douglas Keith, Kansas vote could lead to Wisconsin-level judicial election spending Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 8, 2026), https://statecourtreport.org/our-work/analysis-opinion/kansas-vote-could-lead-wisconsin-level-spending-judicial-elections
