In Kelly v. Kobach, Kansas’s Democratic Governor battles its Republican Attorney General over who controls election fraud prosecutions. The Kansas Supreme Court must decide whether a 2015 statute granting the AG concurrent prosecution authority violates separation of powers by transferring executive power from the Governor. The outcome will determine not just who prosecutes election crimes, but how much power the Legislature has to restructure executive authority in Kansas. Assistance from Claude AI.
Document Overview: What We’re Examining
This case involves three appellate briefs filed with the Kansas Supreme Court in an original jurisdiction dispute—meaning the state’s highest court is hearing the case directly rather than reviewing a lower court decision. The three documents are:
- Petitioner’s Brief – Filed by Kansas Governor Laura Kelly
- Respondent’s Brief – Filed by Kansas Attorney General Kris Kobach
- Reply Brief – Governor Kelly’s response to Kobach’s arguments
This type of litigation is extraordinary. It’s a direct clash between the state’s chief executive and its chief legal officer over which office holds the power to prosecute election fraud crimes. The Supreme Court will act as both the first and final word on this constitutional question.
The Parties: A Political and Legal Showdown
Petitioner: Governor Laura Kelly (Democrat)
- Kansas’s current governor, seeking a declaration that she controls election fraud prosecutions through her appointed Secretary of State
- Represented by private counsel Aria Branch and Kansas Solicitor General Dwight Carswell
- Argues the Attorney General has unlawfully seized executive power
Respondent: Attorney General Kris Kobach (Republican)
- Kansas’s chief legal officer, former Secretary of State known for aggressive voter fraud investigations
- Defending his office’s authority under K.S.A. 25-2439, a statute granting concurrent prosecution power
- Represented by his own office, including Deputy Attorney General Brant Laue
The partisan divide adds political tension to what is fundamentally a separation-of-powers dispute. Kobach built his political reputation on voter fraud concerns; Kelly represents the Democratic party’s skepticism of such claims. But the legal question transcends party politics: Who has the constitutional authority to prosecute crimes in Kansas?
The Core Legal Issue: Prosecutorial Power and Constitutional Design
At its heart, this case asks: Can the Kansas Legislature grant the Attorney General concurrent authority to prosecute election fraud crimes, or does this violate the constitutional separation of powers by encroaching on executive authority?
The Constitutional Framework
Kansas’s Constitution establishes a specific structure for criminal prosecution:
- Article 3, Section 1 vests all executive power in the Governor
- County and district attorneys traditionally handle criminal prosecutions
- The Attorney General serves as the state’s chief legal officer but has historically played a limited role in criminal prosecution
Kansas follows the traditional American model where locally-elected prosecutors (district and county attorneys) handle criminal cases. This differs from states where the Attorney General routinely prosecutes crimes. The question becomes: when the Legislature passes a law giving the AG prosecution power, does this unconstitutionally transfer executive authority away from the Governor?
The Statutory Provision in Question
In 2015, the Kansas Legislature enacted K.S.A. 25-2439, which states:
“The attorney general shall have concurrent jurisdiction with county and district attorneys to investigate and prosecute any violation of the election laws… and any criminal act related to election law.”
This statute explicitly grants Kobach’s office the power to prosecute election-related crimes anywhere in Kansas, regardless of whether local prosecutors are already handling such cases.
Governor Kelly’s Arguments: Why the Statute Violates Separation of Powers
Argument 1: The Attorney General Lacks Constitutional Prosecution Authority
Kelly’s central claim: The Kansas Constitution does not grant the Attorney General any inherent power to prosecute crimes. Instead:
- Criminal prosecution is an executive function under Article 3, Section 1
- The Governor controls executive power and delegates it through county/district attorneys
- The Attorney General’s constitutional role is limited to being the state’s “chief law officer” and legal advisor
Kelly argues that the AG’s office exists to provide legal counsel to state agencies, defend state interests in litigation, and issue legal opinions—not to prosecute criminal cases. She points to Kansas’s constitutional history showing that prosecution has always resided with locally-elected officials accountable to the communities they serve.
The logical foundation: If prosecution is inherently executive, and the Governor holds executive power, then only officials within the Governor’s chain of command can prosecute. The independently-elected Attorney General operates outside this structure.
Strength of this argument: This reflects traditional separation of powers theory. Most state constitutions don’t explicitly address who prosecutes crimes, leaving courts to determine whether prosecution is executive, judicial, or legislative in nature. Kansas precedent suggests it’s executive, which would favor Kelly.
Potential weakness: Kansas law has long recognized that local prosecutors (also independently elected) handle criminal cases without direct gubernatorial control. If independently-elected county attorneys can prosecute without violating separation of powers, why can’t an independently-elected Attorney General?
Argument 2: The Statute Unconstitutionally Transfers Executive Power from the Governor
Kelly’s second argument: Even if the Legislature could give someone prosecution authority, it cannot transfer that power from the Governor to an independently-elected official she doesn’t control.
She relies on the Kansas Supreme Court’s decision in State ex rel. Stephan v. Carlin (1985), which held that the Legislature cannot strip the Governor of constitutional executive powers and give them to someone outside her control. In Carlin, the Court struck down a law that removed the Governor’s appointment power over certain boards.
Kelly’s application: Just as the Legislature couldn’t take appointment power from the Governor in Carlin, it cannot take prosecution power from her executive branch and give it to the Attorney General. The statute effectively creates a “shadow executive” in election matters.
Evidence supporting this claim:
- Historical practice shows prosecution flowing through the Governor’s executive structure
- Kansas court decisions describe prosecution as an executive function
- The Secretary of State (who oversees elections) serves at the Governor’s pleasure and reports to her
Strength: If prosecution is truly executive and the Governor controls the executive, this argument follows logically. The Carlin precedent strongly supports limiting legislative interference with core executive functions.
Potential weakness: The argument assumes prosecution is exclusively executive and exclusively gubernatorial. Kansas law already recognizes that district attorneys—who don’t answer to the Governor—prosecute most crimes. The Attorney General might argue he’s just another independently-elected prosecutor, not different in kind from a county attorney.
Argument 3: The Statute Violates the Single-Subject Rule
Kelly’s third argument: The law violates Kansas Constitution Article 2, Section 16, which requires each bill to address only one subject clearly expressed in its title.
K.S.A. 25-2439 was enacted as part of a larger election law reform bill. Kelly argues:
- The bill’s title addressed election administration procedures
- Granting prosecution power to the AG is a separate subject (governmental structure/authority)
- Combining these topics in one bill violated single-subject requirements
Purpose of single-subject rules: These provisions prevent “logrolling” (combining unrelated provisions to secure votes) and ensure legislators and the public understand what a bill actually does. They promote transparency and deliberation.
Strength: If the bill’s title focused on election procedures (voter registration, ballot access, etc.) without mentioning prosecution authority, this could be a logrolling problem. Legislators voting for “election reform” might not have realized they were restructuring prosecution authority.
Weakness: Courts generally interpret single-subject requirements liberally. If “election law” is the subject, both election procedures and election law enforcement could arguably relate to that single subject. This feels like Kelly’s weakest argument.
Argument 4: The Statute is Unconstitutionally Vague
Kelly’s final argument: The phrase “any criminal act related to election law” is impermissibly vague because it doesn’t clearly define what crimes fall under the AG’s jurisdiction.
Examples of vagueness Kelly identifies:
- Does it include a robbery at a polling place?
- What about a murder of an election official—is that “related to election law”?
- Does “related to” mean “connected with,” “arising from,” or “concerning”?
Constitutional void-for-vagueness doctrine: Laws must give fair notice of what conduct they prohibit (or, in this case, what jurisdiction they grant). If reasonable people can’t determine the statute’s scope, it fails due process requirements.
Strength: The term “related to” is genuinely ambiguous. Does it cover only crimes specifically defined in the election code, or any crime with some connection to elections? This lack of clarity could create serious jurisdictional disputes.
Weakness: Vagueness challenges typically apply to criminal defendants facing charges under unclear statutes. Here, the “defendant” is the Attorney General’s office claiming authority. Courts might find that even if the boundaries are fuzzy, the core applications (voting fraud, ballot tampering) are clear enough.
Attorney General Kobach’s Arguments: Defending Legislative Authority
Argument 1: The Legislature Has Plenary Power to Structure Prosecution
Kobach’s central counter-claim: The Kansas Legislature has broad authority to determine how the state prosecutes crimes, including who may prosecute them.
He argues:
- The Constitution doesn’t specify who prosecutes – it’s silent on this structural question
- County and district attorneys exist by statute, not constitutional mandate
- If the Legislature can create local prosecutors, it can also authorize the Attorney General to prosecute
- Criminal prosecution isn’t inherently gubernatorial – the Governor doesn’t prosecute anyone; her subordinates and independently-elected locals do
The critical move: Kobach reframes prosecution as a legislative function (creating criminal laws and enforcement mechanisms) rather than an executive one (executing the Governor’s will). If the Legislature creates crimes, it can also create the enforcement structure.
Evidence supporting this view:
- Kansas statutes extensively regulate prosecution: who can prosecute, in which courts, under what procedures
- The Legislature has created specialized prosecution authority before (e.g., for multi-county drug trafficking)
- Nothing in Kansas constitutional text designates the Governor as “chief prosecutor”
Strength: This argument has historical force. In early American government, legislatures often controlled prosecution through appointed attorneys general or special prosecutors. The modern concept of prosecution as purely executive evolved over time but isn’t universal.
Potential weakness: If the Legislature has unlimited power to structure prosecution, could it create parallel prosecution systems for every crime category, fragmenting executive authority? At some point, doesn’t removing prosecution from the executive branch violate separation of powers?
Argument 2: The Attorney General Has Inherent Common Law Authority
Kobach’s alternative argument: Even without the statute, the Attorney General possesses inherent common law authority to prosecute crimes, especially those affecting state interests.
At common law in England, the Attorney General could prosecute any crime. Kobach argues Kansas inherited this tradition when it became a state. He cites historical examples:
- Kansas Attorneys General prosecuting cases in the late 1800s and early 1900s
- Other states recognizing inherent AG prosecution authority
- The AG’s role as “chief law officer” implying prosecution power
The textual hook: Article 3, Section 1 makes the Attorney General the state’s “attorney general,” which Kobach argues incorporates common law powers associated with that office.
Strength: If Kansas adopted common law wholesale, and the common law AG could prosecute, then the Kansas AG can prosecute unless the Constitution explicitly removed that power. This is a sophisticated historical argument.
Weakness: This argument requires proving: (1) Kansas adopted the English common law of prosecution, (2) the common law AG had prosecution authority, and (3) Kansas didn’t modify or reject that power through its constitutional structure. Each step is contestable. Moreover, even if true historically, 150 years of practice limiting the AG’s prosecution role might have established a contrary understanding.
Argument 3: The Statute Addresses a Legitimate State Interest
Kobach’s policy argument: Voter fraud and election crimes are uniquely state interests requiring specialized, statewide prosecution capability.
He argues:
- Local prosecutors lack resources to investigate complex, multi-county election schemes
- Local prosecutors may face conflicts of interest when investigating elections that put them in office
- Inconsistent enforcement results when 105 counties handle election crimes differently
- The state’s interest in election integrity justifies centralized prosecution authority
This isn’t strictly a legal argument—it’s a defense of the statute’s wisdom. But it matters because courts sometimes defer to legislative judgments about governmental structure when the constitutional text is ambiguous.
Supporting evidence: Kobach points to multi-county voter fraud investigations his office has conducted that local prosecutors allegedly couldn’t or wouldn’t pursue. He frames himself as filling an enforcement gap.
Strength: This resonates with practical concerns about governmental effectiveness. If local prosecutors won’t enforce election laws, shouldn’t someone be able to?
Weakness: This is fundamentally a policy argument, not a constitutional one. The question isn’t whether centralized election fraud prosecution is a good idea—it’s whether the Constitution permits it. Even good ideas can be unconstitutional if they violate structural requirements.
Argument 4: Kelly Lacks Standing and the Case is Moot
Kobach’s procedural arguments: He challenges whether this case should even be decided.
Standing argument: Kelly hasn’t suffered a concrete injury. She’s not being prosecuted; the Attorney General is prosecuting others. She’s asserting institutional interests on behalf of the executive branch generally, but Kobach argues she needs personal harm to sue.
Mootness argument: The specific prosecution that prompted this lawsuit has concluded. Since Kelly is challenging Kobach’s authority in a specific case that’s over, the dispute is moot.
Strength: Standing and mootness doctrines exist to limit courts to deciding actual cases and controversies, not abstract questions. If Kelly is essentially requesting an advisory opinion on executive power, courts might decline.
Weakness: Courts recognize exceptions for disputes “capable of repetition yet evading review”—issues that will recur but resolve too quickly for judicial review. The Governor’s challenge to the AG’s prosecution authority fits this category. Moreover, separation-of-powers disputes often involve institutional rather than personal injuries, and courts hear them anyway.
Evaluating the Evidence: What Supports Each Side?
Evidence Supporting Governor Kelly
Constitutional text and structure:
- Article 3, Section 1’s grant of executive power to the Governor
- The historical practice of local prosecution under executive authority
- The absence of any constitutional text granting the AG criminal prosecution power
Precedent:
- State ex rel. Stephan v. Carlin (1985) prohibiting legislative transfer of executive powers
- Cases describing prosecution as an executive function
- Kansas Supreme Court decisions limiting AG authority to constitutional and statutory grants
Practical considerations:
- The risk of politically-motivated prosecutions if the AG can prosecute independently
- The accountability problem when an independently-elected official prosecutes without executive oversight
- The potential for duplicative or inconsistent prosecution
Evidence Supporting Attorney General Kobach
Constitutional silence:
- The Constitution doesn’t explicitly address who prosecutes crimes
- The AG is a constitutional officer with undefined “chief law officer” responsibilities
- The Legislature has broad power to structure government where the Constitution is silent
Historical practice:
- Legislative creation of prosecution systems in Kansas and other states
- Historical examples of Kansas AGs prosecuting cases
- Common law traditions of AG prosecution authority
Statutory interpretation:
- K.S.A. 25-2439 is clear in granting concurrent jurisdiction
- The Legislature specifically chose to authorize AG prosecution
- Other statutes grant the AG specialized prosecution authority without constitutional objection
Practical needs:
- Specialized expertise needed for complex election fraud cases
- Resource limitations of small county prosecutor offices
- Statewide perspective needed for election integrity
Analysis of Legal Precedents
State ex rel. Stephan v. Carlin (1985)
The key case for Kelly: In Carlin, the Kansas Supreme Court struck down legislation that removed the Governor’s power to appoint members of certain state boards and gave it to the Legislature.
The Court’s reasoning:
- The Kansas Constitution vests executive power in the Governor
- Appointment of executive officers is inherently executive
- The Legislature cannot transfer constitutional executive powers to other branches
Kelly’s application: Prosecution, like appointment, is an inherent executive function. The Legislature cannot transfer it from the Governor’s branch to an independently-elected AG.
Kobach’s counter: Carlin addressed appointments specifically mentioned in Article 1. Prosecution isn’t mentioned anywhere. Moreover, the Legislature didn’t “transfer” power from the Governor—she never had personal prosecution authority. The statute creates concurrent jurisdiction without removing anything from the executive branch.
Court’s likely view: This precedent strongly favors Kelly on the principle that core executive functions can’t be transferred. But the question is whether prosecution is a “core executive function” of the Governor specifically, or a governmental function the Legislature can allocate.
Common Law Attorney General Authority Cases
Kobach’s historical argument relies on cases from other states recognizing inherent AG prosecution power:
- Some states (like Hawaii and Delaware) recognize broad inherent AG prosecution authority
- English common law gave the Attorney General extensive prosecution powers
- Early American practice sometimes included AG prosecutions
Kelly’s counter: Kansas has a different constitutional structure. Even if other states give their AGs inherent power, Kansas hasn’t. Historical practice in Kansas shows limited AG prosecution, mostly at the request of local prosecutors.
Court’s likely view: While historical evidence matters, Kansas’s own constitutional tradition and practice probably matter more than what England or other states do. If Kansas has operated for 150+ years with the AG playing a minimal prosecution role, that practice has constitutional significance.
Separation of Powers Generally
Both sides cite general separation of powers principles:
Kelly’s position: Separation of powers means each branch has exclusive zones of authority. The Governor’s executive power includes prosecution. The Legislature cannot reassign executive functions.
Kobach’s position: Separation of powers means each branch has its core functions, but the Legislature can structure government in areas where the Constitution is silent. Prosecution is a shared governmental function, not exclusively executive.
The competing theories:
- Formalist separation of powers: Each power belongs to one branch; strict boundaries
- Functionalist separation of powers: Powers can be shared if no branch aggrandizes itself or undermines another
Kansas courts have applied both approaches in different contexts, making prediction difficult.
Identifying Weaknesses in Each Side’s Case
Weaknesses in Kelly’s Arguments
The independently-elected prosecutor problem: Kelly’s strongest argument is that prosecution is executive and the Governor controls the executive. But Kansas already has 105 county and district attorneys who prosecute crimes without gubernatorial oversight. If they don’t violate separation of powers, why would an AG with concurrent jurisdiction?
Kelly tries to distinguish this by arguing that local prosecutors are part of the traditional executive structure, even if independently elected. But this feels ad hoc. Either independently-elected officials can prosecute (in which case the AG can), or they can’t (in which case local prosecutors are also unconstitutional).
The “never prosecuted” problem: Kelly argues the Governor controls prosecution through the executive chain. But governors don’t actually prosecute anyone—they’ve never exercised direct prosecution authority in Kansas. If the Governor’s executive power includes prosecution, why has no governor ever prosecuted a case?
The practical consequences problem: If Kelly wins, does that mean local prosecutors are unconstitutional because they’re not under gubernatorial control? Kelly says no, they’re different. But the constitutional text doesn’t distinguish between AGs and county attorneys—both are officers who prosecute crimes.
Weaknesses in Kobach’s Arguments
The “unlimited legislative power” problem: If the Legislature can grant the AG concurrent prosecution authority for election crimes, what limits exist? Could it create specialized AGs for drug crimes, violent crimes, white-collar crimes, etc., fragmenting the executive branch? Kobach doesn’t articulate a limiting principle.
The “common law fiction” problem: Kobach’s argument that Kansas inherited the English AG’s common law prosecution power is historically creative but legally dubious. Kansas has never operated this way. If the AG has always had inherent prosecution power, why did the Legislature need to grant it by statute in 2015? The statute’s existence undermines the inherent power argument.
The “cherry-picked history” problem: Kobach cites isolated historical examples of Kansas AGs prosecuting cases. But Kelly can cite 150 years of AGs mostly not prosecuting cases. Which practice counts as the constitutional baseline? Kobach’s examples look like exceptions that prove the rule.
The “policy masquerading as law” problem: Much of Kobach’s brief argues that AG prosecution makes sense because local prosecutors lack resources or face conflicts. This might justify the statute as policy, but it doesn’t address the constitutional question. Even good policies must comply with constitutional structure.
Predictions: Who Will Prevail?
This is genuinely difficult to predict because it depends on how the Kansas Supreme Court approaches separation of powers questions. However, I’d give Governor Kelly a 60-65% chance of prevailing.
Why Kelly is Slightly Favored
Strong precedent: Carlin clearly holds that the Legislature cannot transfer constitutional executive powers from the Governor to other officials. If prosecution is executive, this case is straightforward.
Textual clarity: Article 3, Section 1 vests “executive power” in the Governor. While it doesn’t define prosecution as executive, Kansas courts have repeatedly described it that way.
Institutional concerns: Courts are often skeptical of governmental fragmentation. Allowing independently-elected officials to prosecute without executive oversight creates accountability problems. An AG could prosecute the Governor’s allies or political opponents without any check.
The statute’s breadth: K.S.A. 25-2439 grants authority over “any criminal act related to election law,” which is very broad. This isn’t a narrow, targeted grant for specialized circumstances—it’s a sweeping transfer of authority. Courts might be more willing to uphold limited, specific grants than broad ones.
Why Kobach Has a Real Chance (35-40%)
Constitutional silence: The Kansas Constitution simply doesn’t address who prosecutes crimes. When the text is silent, courts often defer to legislative judgment. The Legislature said the AG can prosecute; why should courts second-guess that?
Practice and tradition: While the AG hasn’t historically prosecuted much, county attorneys (also independently elected) have always prosecuted. If independent local prosecutors are constitutional, an independent state prosecutor might be too.
Practical realities: Election fraud cases can span multiple counties and involve state officials. Local prosecutors may lack expertise or face conflicts. The Court might defer to the Legislature’s judgment that statewide coordination is needed.
Narrow holding possibility: The Court could uphold the statute narrowly—saying it’s constitutional for election crimes specifically because of their statewide character, without creating a broad principle allowing AG prosecution of any crime category.
The Swing Factors
How the Court defines “executive power”: If executive power means “gubernatorial power,” Kelly wins. If it means “governmental implementation power that the Legislature can allocate,” Kobach wins.
How much weight the Court gives to historical practice: Kansas has operated for 150 years with minimal AG prosecution. Does that practice define constitutional meaning, or is it just legislative choice that can be changed?
The Court’s political composition: This shouldn’t matter in theory, but separation of powers disputes often have political valences. Kansas’s Supreme Court currently leans conservative but has shown independence from the Republican Legislature and Governor on constitutional questions.
Next Steps for the Parties
If Kelly Wins
Immediate effect: K.S.A. 25-2439 would be declared unconstitutional. The Attorney General would lose statutory authority to prosecute election fraud cases.
Kobach’s options:
- Accept the decision and cease election fraud prosecutions
- Work with county prosecutors to pursue cases cooperatively (he could still investigate and refer to local prosecutors)
- Ask the Legislature to grant him authority in a constitutionally permissible way (though Kelly’s victory would suggest no such way exists)
Kelly’s position: She would have successfully defended executive authority and limited the AG’s independent power. The Secretary of State would remain the primary election enforcement officer, under gubernatorial oversight.
If Kobach Wins
Immediate effect: The AG retains authority to prosecute election crimes statewide, concurrent with local prosecutors.
Kelly’s options:
- Accept the decision as settling the separation of powers question
- Support legislative efforts to repeal K.S.A. 25-2439 (though a Republican Legislature is unlikely to do this)
- Work to ensure Secretary of State coordination with the AG’s office on election matters
Kobach’s position: He could continue investigating and prosecuting election fraud cases as he sees fit, without needing local prosecutor cooperation or gubernatorial approval.
The Likely Reality: A Narrow Decision
Kansas Supreme Court decisions often try to decide cases narrowly, avoiding broad constitutional pronouncements when possible. The Court might:
- Uphold the statute but limit its scope: Finding it constitutional for election fraud specifically but not establishing a broad principle about AG prosecution
- Invalidate the statute but leave the door open: Striking down K.S.A. 25-2439 for being too broad while suggesting a more narrowly-drawn statute might pass constitutional muster
- Decide on statutory grounds: Finding the statute violates the single-subject rule, avoiding the constitutional question entirely
Broader Implications: What This Means for Kansas and Beyond
Federalism and State Constitutional Structure
This case represents an important question about how states structure their governments. Unlike the federal system where the Department of Justice clearly handles federal prosecutions, states vary widely:
- Some states (like Delaware) give their AGs broad prosecution power
- Other states (like most) rely primarily on locally-elected prosecutors
- A few states have mixed systems with concurrent authority
Kansas’s decision will reflect its constitutional choice about prosecution: centralized vs. decentralized, state vs. local, politically insulated vs. democratically accountable.
Election Integrity and Political Power
The practical stakes involve who controls election law enforcement in Kansas:
If the AG controls it:
- A Republican AG could aggressively pursue voter fraud cases that a Democratic Governor thinks are overblown or politically motivated
- Conversely, a future Democratic AG could decline to prosecute cases a Republican Governor thinks are serious
- Election enforcement becomes more centralized and potentially more vigorous
- Local communities lose control over how election crimes in their jurisdictions are prosecuted
If the Governor controls it (through the Secretary of State):
- The party controlling the governorship controls election enforcement
- Enforcement may vary by locality based on county prosecutor priorities
- Potential for inconsistent statewide enforcement
- Greater local democratic accountability
The Broader Separation of Powers Question
Beyond Kansas, this case addresses a fundamental question in American governance: Can legislatures restructure executive authority through statute, or do constitutional allocations of power limit legislative flexibility?
The “strong legislature” view (favoring Kobach): Legislatures are supreme in structuring government except where constitutions explicitly forbid it. This promotes democratic accountability and governmental flexibility.
The “strong separation” view (favoring Kelly): Constitutional allocation of powers creates fixed boundaries that legislatures cannot cross. This prevents majoritarian overreach and protects structural limits.
Most state and federal systems fall somewhere between these poles. Kansas’s decision will signal where it falls on this spectrum—with implications for future disputes over governmental structure.
Potential Federal Parallels
While this is a state constitutional case, it echoes federal debates about:
Special counsels and independent prosecutors: Can Congress create prosecutors independent of presidential control? The federal system has struggled with this (see Morrison v. Olson upholding independent counsels, later allowing the statute to lapse).
Executive agency independence: Can Congress create executive agencies the President cannot control? This parallels the question of whether Kansas can create a prosecutor the Governor cannot control.
Unitary executive theory: The federal debate over whether the President must control all executive functions mirrors Kansas’s debate over gubernatorial control of prosecution.
Conclusion: A Close Constitutional Contest
This case presents sophisticated arguments on both sides of a genuinely difficult constitutional question.
Governor Kelly makes a strong case that prosecution is an inherently executive function that cannot be transferred from the Governor’s control to an independently-elected official. Her arguments are grounded in constitutional text, strong precedent (Carlin), and sensible concerns about governmental accountability.
Attorney General Kobach makes a credible case that the Legislature has broad power to structure prosecution, that the Constitution doesn’t grant the Governor personal prosecution authority, and that concurrent AG jurisdiction addresses real practical needs without undermining executive power.
The case will likely turn on whether the Kansas Supreme Court adopts a formalist approach (strict separation of powers with fixed zones of authority) or a functionalist approach (flexible arrangements unless one branch aggrandizes itself). Kelly’s arguments fit formalism; Kobach’s fit functionalism.
My prediction: Kelly prevails 60-65%, with the Court holding that prosecution is sufficiently executive in nature that the Legislature cannot grant it to an independently-elected official outside the Governor’s control. But this is genuinely uncertain—Kobach’s arguments about legislative flexibility and practical necessity have real force.
The decision will shape Kansas governance for decades, determining not just who prosecutes election crimes but how much power the Legislature has to restructure executive authority. It’s a case worth watching closely, regardless of one’s political affiliation, because it addresses fundamental questions about democratic governance and constitutional structure.