TOPEKA — Republicans in the Kansas Senate were convinced a statewide vote in November on a constitutional amendment making it impossible for public education financing disputes to force closure of schools would play well politically.
The House GOP never quite warmed to that idea.
Senate Vice President Jeff King said the amendment he drafted would have driven voters to the polls because Kansans overwhelmingly oppose the threat laid down by the Kansas Supreme Court to close schools as a consequence of litigation on education finance.
Children would benefit from slam-dunk passage of an amendment prohibiting the legislative and judicial branches from responding to legal gridlock by locking down schools, the Independence Republican said.
Voters then would be on hand statewide to turn the ballot-box dial against retention of moderate justices on the Supreme Court and in favor of Republican legislative candidates, said Senate President Susan Wagle, R-Wichita.
“I think it’s a win-win for us,” she said. “Having this on the ballot in November would be a very good thing.”
The Senate failed to secure the necessary two-thirds majority to advance the amendment during a special session of the Legislature in June. The House didn’t bother voting on the measure.
Bipartisan disagreement exists about how absence of the school-closure amendment will influence fate of the five Supreme Court members, including an appointee of Gov. Sam Brownback, who must earn a simple majority of votes cast in November to remain on the high court.
Conservative GOP activists and lawmakers are angling to remove four members while protecting Brownback’s pick.
Sen. Steve Abrams, R-Arkansas City, said he supported the constitutional amendment but thought it would be viewed by the public as vindictive if passed during the two-day special session devoted to answering a Supreme Court ruling about unconstitutionality of state aid to K-12 public schools.
He said a retribution narrative would weaken a campaign against Justices Carol Beier, Dan Biles, Marla Luckert and Lawton Nuss. The Brownback appointee up for retention is Justice Caleb Stegall, the governor’s former attorney.
Debate about the amendment might overwhelm the public’s indignation about the court’s 2014 decision overturning death penalty sentences for Wichita killers Reginald and Jonathan Carr, Abrams said. In January, the U.S. Supreme Court reversed the state court’s ruling.
“It takes away from the message about the Carr brothers,” Abrams said.
House Majority Leader Jene Vickrey, R-Louisburg, said he worried the amendment could have distracted voters who ought to concentrate on the rallying cry that “our Supreme Court has been overturned more than any other Supreme Court in the nation.”
Republicans and Democrats in the Legislature — Tyro Rep. Virgil Peck on the right and Senate Minority Leader Anthony Hensley of Topeka on the left — said appending the constitutional amendment to ballots would have had little or no influence on outcome of judicial retention voting.
“I really don’t think it’s going to make much difference other than the turnout,” Peck said.
Hensley said both sides of the equation would have pushed activists to the polls at levels proportional to partisan registration.
The upcoming campaign on Supreme Court retention ought to be simple, the senator said, because “it’s a choice between an independent judiciary versus control by Brownback.”
Rep. Sydney Carlin, a Manhattan Democrat, said she was relieved the constitutional amendment fell short in the Senate. It is a benefit for forces working to retain justices and to oppose a zealous attempt to grab power from the courts, she said.
“It’s helpful. They’re doing what we ask them to do — they’re making decisions for the public on our laws,” she said.
However, Rep. Melissa Rooker, R-Fairway, said she was certain the constitutional amendment would have elevated in the public consciousness the necessity of an independent state judiciary in Kansas.
Sen. Steve Fitzgerald, R-Leavenworth, said he was irked the Supreme Court appeared willing to ignore an 11-year-old state law forbidding public schools from being shuttered amid a constitutional showdown on state aid to districts.
“We have a branch of government that observes no bounds,” Fitzgerald said.
Sen. Ralph Ostmeyer, R-Grinnell, said conservative political operatives during the next four months needed to shield Stegall, the lone conservative on the bench, while advocating for defeat of “a bunch of moderates and liberals” who comprise the Supreme Court’s majority.
He said the left-leaning court had ruled improperly on cases related to public education, abortion and capital punishment.
“We are at a crossroads here,” he said. “We are a conservative state.”
Campaign mailers, robo-calls and propaganda targeting the Supreme Court is unlikely to produce results sought by Ostmeyer, Fitzgerald and others interested in overhauling membership of the Supreme Court, said Sen. Jeff Longbine, R-Emporia.
He said the public was more disturbed about conduct of the legislative and executive branches than the judicial branch.
“I don’t believe a majority, at least among my constituents, are blaming the court. They are clearly blaming the Legislature and the executive branch,” Longbine said.
Rep. John Carmichael, a Wichita Democrat, concurred with Longbine. Polling has shown the Supreme Court to be more popular than Brownback and the Republican-lead Legislature, he said.
“For good reason,” Carmichael said. “A constitutional amendment would be defeated and all the justices retained.”