A small organization that formed late in the election cycle to campaign against the retention of two Kansas Supreme Court justices faced long, if not impossible, odds.
In the roughly 60 years that Kansas has had retention elections, no justice had ever lost one. Only one Kansas judge at any level had ever lost one – a judge in Lyon County in 1980.
When two state Supreme Court justices were retained by a statewide vote of 53 to 47 percent on Tuesday, the result was typical in a nation that retains 98.9 percent of its judges, said Stephen J. Ware, a University of Kansas law professor.
That percentage is even higher when you consider that Illinois requires judges to win 60 percent of the vote to be retained rather than a simple majority and that most of the losses come in Illinois, he said.
Sedgwick County voters wanted to oust the two justices, Lee Johnson, 67, of Caldwell and Eric Rosen, 61, of Topeka.
Members of the Kansas Supreme Court face a vote every six years on whether they should be retained. Johnson and Rosen were the only two standing for retention votes this year.
They had faced opposition for being among six justices who voted in July to overturn death sentences for Jonathan and Reginald Carr in a Wichita quadruple homicide. The 6-1 ruling also struck down three of each brother’s four capital-murder convictions.
The ruling drew outrage across the state, although others defended it as an example of justices having to follow the law no matter how unpopular the decision.
The final, but unofficial, vote in Sedgwick County, where the crimes occurred, showed the vote to oust Johnson was 54 percent and the vote to get rid of Rosen was 55 percent.
Many counties in western Kansas also voted to remove them from the bench.
But all those votes were swamped by counties in northeast Kansas with larger voter turnout.
In Sedgwick County, there were 64,000 votes against Rosen, 62,000 against Johnson. But in Johnson County, Rosen received 96,000 votes in favor of retaining him, or 59 percent of the vote, while Johnson received 93,500, or 58 percent. The two justices also won retention handily in Wyandotte, Shawnee and Douglas counties.
Conservative voters who otherwise dominated Tuesday’s election might have been interested in ousting the two justices who were appointed by former Gov. Kathleen Sebelius, a Democrat. But most voters likely didn’t have much information about the judges when they voted.
“If people don’t have information, the default seems to be to retain them,” said Bob Beatty, a political science professor at Washburn University. “Every now and then, you’ll see a group or a politician say, ‘Don’t vote to retain this judge,’ but it’s very rare. Even when they do, they don’t reach a very wide audience.”
Amy Scott James, spokeswoman for Kansans for Justice, the group of 10 relatives and friends of the victims of the Carr brothers, said the group worked with limited time and resources.
In the northeast counties, the media wasn’t interested in doing stories about its effort, she said.
Kansans for Justice did a lot of social media and as many robocalls in the area as it could afford, she said, but it couldn’t get TV, radio or newspaper coverage. Its financial resources were small, she said.
James, who dated Brad Heyka, one of the five people killed by the Carr brothers, also speculated that the presence of the KU and Washburn law schools made Douglas and Shawnee counties friendly to judges.
“I think we’re still trying to understand the numbers,” she said.
She didn’t know whether the group would try again in 2016 when other justices who voted to overturn the Carrs’ death sentences will come up for retention.
“I think we need to assess what steps to take in the coming months,” James said.
While she realizes getting the statewide vote against the two justices to 47 percent was an accomplishment, “We can’t help but be disappointed that Justices Rosen and Johnson were not removed,” she said.
Ware said that retention elections are designed for incumbents to win, primarily because there are no opposing candidates who are trying to take their jobs.
And without party labeling on the ballot, voters may not realize that they have views that are contrary to those of the incumbent judges, Ware said.
“If somebody were to propose putting party labels in retention elections, the main counterargument would be we don’t want votes to be decided just based on party,” he said.
Before the election, the Kansas Bar Association and other prominent organizations in the legal profession joined with the Kansas League of Women Voters in urging voters to get information on judges up for retention from the 2014 Kansas Judicial Review.
They said in a joint statement that, “Unlike legislative races, these are not meant to be partisan political contests. Our democracy rests on a foundation of fair courts, free from political interference. Judges running for retention must be evaluated for their ability to impartially apply the law in all cases.”
Reach Fred Mann at 316-268-6310 or firstname.lastname@example.org.