TOPEKA — In November, six of Kansas’ seven Supreme Court judges are up for retention votes, and two constitutional amendments will be decided.
Advocacy groups say these choices on the November ballot offer voters an opportunity to shift Kansas’ political landscape.
One state constitution amendment focuses on reducing the governor’s executive power and the other on protecting the elected position of sheriffs across the state. The amendments have been criticized for pushing partisan agendas by the American Civil Liberties Union of Kansas, but some legislators and law officials say more oversight of executive agencies is needed.
The proposed legislative veto
The Kansas Legislature currently has the ability to overturn executive rules and regulations by a two-thirds majority vote and a signature from the governor. This amendment would change that, authorizing the Legislature to revoke or suspend policies from the state executive by a simple majority vote, with no governor signature required. The amendment would shift power away from the governor and toward the legislature.
Critics say the amendment is a reaction to Gov. Laura Kelly’s policies. Attorney General Derek Schmidt, who is running against Kelly in the race for governor, first proposed it in February 2021, following Kelly’s decision to temporarily close schools at the beginning of the COVID-19 pandemic. Schmidt has used Kelly’s handling of the pandemic as a key part of his platform during his gubernatorial campaign, saying her pandemic-era lockdowns and mandates hurt Kansas students.
“A legislative veto would enable the Legislature to reject specific agency rules and regulations in a targeted manner, acting as a check-and-balance over regulatory sprawl and making the Legislature itself more accountable to the people of Kansas for how agencies use the power the Legislature has given them,” Schmidt said in release supporting the amendment. “This is a victory for regulatory accountability and citizen control of state government, and I am hopeful Kansas voters will approve the proposed amendment in November.”
If Kelly is reelected and the amendment passes, the Republican-dominated Senate and House would have veto power over any executive branch action, including power over the state agencies under Kelly’s jurisdiction.
Amii Castle, a constitutional law professor at the University of Kansas, said during a League of Women Voters of Johnson County discussion the proposed amendment had worrying implications.
“This amendment, if passed, would take the governor completely out of the equation,” Castle said. “And so that if 51% of our legislature decides that they want to revoke that regulation, they can do it with a simple majority. Fifty-one percent and it never goes to the governor. There’s no veto power. So it’s basically taking power from the executive branch, those administrative agencies that the governor oversees, taking power from the executive branch and giving it to 51% of our state legislators.”
Micah Kubic, executive director of the ACLU of Kansas, said the amendment threatened constitutional rights, and would create a dangerous power imbalance.
“What this really does is set up a permanent state of conflict and chaos between the governor, whoever they are, and their ability to implement laws and the legislature in perpetuity,” Kubic said. “I think that is really a sign of instability and creates uncertainty in the state government in a way that I think is really, really dangerous for democracy.”
The Kansas Supreme Court ruled against a similar measure in 1984 that would have allowed the Legislature to suspend or revoke administrative rules, calling it unconstitutional and a violation of the separation of powers.
Sheriff election and recall proposal
The amendment on the Kansas county sheriff election and recall could help keep controversial Johnson County Sheriff Calvin Hayden in his position. The amendment says counties that elected sheriffs in January 2022 can continue to elect sheriffs — meaning the sheriff’s position would be fixed as an elected position, instead of an appointed position for all but one of Kansas counties.
