UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

ROBERT DOOL; JULIE BROWN; DONALD D. ROSENOW; THOMAS C. SCHERMULY, Plaintiffs – Appellants, v. ANNE E. BURKE, in her official capacity as Chairman of the Kansas Supreme Court Nominating Commission; KERRY E. MCQUEEN, in his official capacity as Attorney Member of the Kansas Supreme Nominating Commission; PATRICIA E. RILEY, in her official capacity as Attorney Member of the Kansas Supreme Nominating Commission; MATTHEW D. KEENAN, in his official capacity as Attorney Member of the Kansas Supreme Nominating Commission; JAY F. FOWLER, in his official capacity as Attorney Member of the Kansas Supreme Nominating Commission; CAROL GILLIAM GREEN, in her official capacity as Clerk of the Kansas Supreme Court, Defendants – Appellees. No. 10-3320 (D.C. No. 6:10 -CV-01286-MLB-KMH) (D. Kan.)

ORDER AND JUDGMENT *

* This order and judgment is an unpublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to la w of the case, issue preclusion and claim preclusion. Unpublished decisi ons may also be cited for thei r persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate FILED United States Court of Appeals Tenth Circuit 

### September 13, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Before O'BRIEN , McKAY , and MATHESON , Circuit Judges.
A group of Kansas voters, none of them la wyers, sued the atto rney members of the Supreme Court Nominating Commission (Commi ssion) and the Clerk of the Appellate Courts requesting a temporary restraining order and prelimin ary injunction to prevent any vacancies from being filled while this lawsu it is pending. The Commission is composed of five attorneys elected by attorneys and four non-attorney s appointed by the Governor. Appellant voters claim the selection of th e Commission’s attorney members violates the one person, one vote principle of the Equal Protection Clause because the franchise is closed to all but attorneys. The district court denied the preliminary requests for relief before going on to dismiss the complaint for failure to state a claim. The voters appealed from the dismissal.
AFFIRMED.

Entered for the Court Per Curiam

parenthetical notation

B (unpublished). Id

.10-3320, Dool, et al. v. Burke, et al. O’BRIEN , J. concurring.
Kansas fills appellate cour t vacancies using a merit-se lection system under which the governor picks from a shortlist of candi dates tendered by a nomination commission. The commission is comprised of five attorney s and four non-attorneys. Non-attorney members are appointed to the commission by the governor, while a ttorney members are elected by resident attorneys. The effect of the system is to give Kansas lawyers disproportionate influence over the selection process. This case presents an equal protec tion challenge to the election of the commission’s attorney members. The challengers, non-attorney residents of Kansas, claim they must be given an equal opport unity to participate in elections for the Commission’s attorney members, much as they would in elections for any other public offices. In their view, denying otherwise qua lified voters the right to vote on equal terms with resident lawyers violates the Equal Prot ection Clause of the Fourteenth Amendment. For the reasons stated herein, I concur in the Order and Judgment entered Per Curiam. BACKGROUND Kansas is not alone in its use of merit selection to fill judicial vacancies. The system is employed in one form or another by more than thirty states. Sandra Day O’Connor, The Essentials and Expen dables of the Missouri Plan , 74 M O
. L. R EV . 479, 486 (2009). What sets apart merit selection in Kansas is its genesis. Before 1958, Kansas voters chose judges by popular elec tion, with the governor filling interim- 2 - vacancies by appointment. Jeffrey D. Jackson, The Selection of Judges in Kansas: A Comparison of Systems , 69-JAN J. K AN
. B. Ass’n, Jan. 2000, at 33. Confidence in that system hit bottom in 1956 wh en Governor Fred Hall, defeated in his party’s primary election, set his sights on the state supreme court, specifically the seat of chief justice, which was soon to be vacated by the ailing Bill Smith, a loyal supporter of Hall’s. See id. at 34. Resolved to have th e seat but unable to appoint himself, Hall (in cooperation with Smith) did th e next best thing: he waited for Chief Justice Smith to resign and ce ded the governorship to his lieutenant, John McCuish, on the condition that McCuish appoint hi m to fill the judicial vacancy. Id . McCuish did just that, his first and final decision in his 11- day tenure as governor. Their three-step maneuver—Smith resigns from the bench, Hall resigns the governorship, McCuish appoints Hall to take Justice Smith’s seat—w ould be remembered, disgracefully, as the Kansas triple play. The public was outraged. Within days a joint resolution had b een introduced in the legislature calling for an overhaul of the judicial-selection process and the creation of a non-partisan judicial nomination commission. See Anatomy of a Merit Selection Victory , 93 J UDICATURE 6, 8 (2009) (remarks of panelist Greg Musil). Less than two years later, in the 1958 general election, Kansas voters resoundingly approved a constitutional amendment establishing the Supreme Court Nomination Commission (“Commission”). K AN
. C ONST
. ART
. 3, § 5. Legislation implementing the amendment followed in short order, K AN
. S TAT
. A NN . § 20-119 et seq ., and two decades later, when the legislature created the Kansas Court of Appeals, it charged the Commission with- 3 - selecting nominees to fill vacancies on that court and certain trial courts 1 as well, K AN
. S TAT
. A NN . § 20-3004(a). The Commission is a nine-member body cons isting of a chairperson (a lawyer licensed and residing in Kansas), as well as one attorney member and one non-attorney member from each of the four U.S. congressional districts. K AN
. S TAT
. A NN . § 20-119, 20-120. The attorney memb ers are elected by licensed a ttorneys residing in their respective congressional districts, the chairperson by Kansas attorneys voting at large. Id

. The four non-attorney members ar e appointed by the governor. K AN
. C ONST
. ART
. 3, § 5. The attorney-member selection process is administered by the Clerk of the Appellate
Courts. K AN
. S TAT
. A NN . §§ 20-119, 20-120. When a seat opens on the Supreme Court or the Court of Appeals, th e clerk alerts the Commission’s chairperson and sends a notice of vacancy, along with a deadlin e for submission of applica tions, to eligible Kansas attorneys residing in the state. K AN
. S TAT
. A NN . §§ 20-132, 20-3007; Patricia E. Riley, Merit Selection: The Workings of the K ansas Supreme Court Nominating Commission , 17
K AN
. J. L. & P UB
. P OL ’ Y 429, 431 (2008). Once applic ations are submitted, candidates undergo interviews and bac kground checks, and the Commi ssion, which may act only by majority vote, decides which three names w ill be submitted to the governor. Riley,
supra , at 432-34. The governor must select one of the three candidates to fill the

1 In 1974 the legislature enab led voters in each judicial di strict to opt into the merit selection system for selecting tr ial judges and magistrates. K AN
. S TAT
. A NN . §§ 20-2901- 16. To date 17 districts (embra cing 52 counties) use the mer it selection system. Stacie L. Sanders, Kissing Babies, Shaking Hands, and Campaign Contributions: Is this the Proper Role for the Kansas Judiciary? , 34 Washburn L. J. 573, 58 0 n. 49 (1995). The remaining 14 districts (53 counties) still select di strict judges by partisan election. Id

.- 4 - vacancy. K AN
. C ONST
. ART
. III, § 5(a), (e); Riley, supra , at 432-34. Should the governor fail to appoint one of the three candidates with in 60 days of receiv ing the list, the duty falls to the the chief justice of the Kansas Supreme Court. K AN
. C ONST
. ART
. III, § 5(b). Merit selection notwit hstanding, Kansas voters retain control over the tenure of the members of the state judiciary. Supreme Co urt justices and Cour t of Appeals judges stand for retention in the general electi on after serving for at least a year. Id . § 5(c). The same goes for trial court judges in the 17 dist ricts that have adopted merit selection for district judges and magistrates. 2 Appointed judges can keep th eir office if a majority of those voting elect to retain them , or else the office becomes vacant and the process starts

over. Id . Kansas Supreme Court justices stand for retention every six years, appellatecourt judges and district judges every four. K AN
. S TAT
. A NN . §§ 20-3006(b), 20-2902. National experience demonstrates no timid ity by voters in e nding the tenure of judges standing for retenti on. Although incumbents regul arly prevail in retention elections, victory is hardly automatic. In 2010 alone, the list of failed retention candidates included (but was not necessarily limited to) three Supreme Court justices in Iowa, two district judges in Colorado, a district court judge in Alaska, and a magistrate in New Mexico. Judicial Selection in the States , American Judicature Society, http://www.judicialselection.us/. 3

2 The Kansas Judicial Report Card, http://www.kansasjudici alperformance.org/ index.cfm?? Page=TheKansasJudicialReportC ard (last visited July 30, 2012). One hundred twenty-nine of the state’s 244 trial court judges are chosen by merit selection. Id

. 3 Wyoming’s experience is, perhaps, embl ematic. Its merit selection system is- 5 - DISCUSSION A. That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial. Reynolds v. Sims , 377 U.S. 533, 562 (1964); Wesberry v. Sanders , 376 U.S. 1, 7 (1964). That the right is comprehensive, extending beyond statewide legislative bodies to county and municipal offices, and even to smaller entities such as school boards and college tr ustees, is similarly beyond dispute. See, e.g. , Hadley v. Junior Coll. Dist. , 397 U.S. 50, 53-54 (1970); Kramer v. Union Free Sch. Dist. No. 15 , 395 U.S. 621, 626-27 (1969); Avery v. Midland Cnty. Tex. , 390 U.S. 474, 476-77, 484-85 (1968). The question presented by this appeal is whether it extends even further, beyond traditional democratic institutions to specialized bodies like the Commission, and if so, whether the process for electing the Commission’s attorney members violates the Equal Protection Clause of the Fourteenth Amendment. The foundational voting rights decision is Reynolds , the first in a series of electoral apportionment cases to announce the principle that one person’s vote should count for no more or no less than anothe r’s. 377 U.S. at 562. Reynolds concerns state legislatures, and the immediate effect of the decision was to require state legislative districts to be quite similar to the Kansas system. See W YO
. C ONT
. A RT . 5, § 4. Since Wyoming adopted merit selection in 1972, voters have ousted five judges in retention elections, four general-jurisdiction trial judg es and one Supreme Court justice. Judicial Selection in the States: Wyoming , American Judicature Society, http://www.judicialselection.us/ judicial_selection/index.cfm?state=WY. Wyom ing had five Supreme Court justices and 16 district court (general juri sdiction) judges in 1972. Wyoming Blue Book, Vol. III 29- 30 (Virginia Trenholm ed., Wyoming State Arch ives and Historical Dept, 2007). As of July 2012, the number of distri ct judges had risen to 23. W YO
. S TAT
. A NN . § 5-3-102. The number of Supreme Court Jus tices has remained the same.- 6 - nearly equal in population. See Branch v. Smith , 538 U.S. 254, 268 (2003). But while Reynolds requires due regard for equal protecti on in legislative elections, it does not address whether qualified voters are entitled to participate on equal terms in elections for non-legislative offices. See Avery , 390 U.S. at 484. The Court answered that question in Avery , concluding Reynolds applies with equal force to officials of a county gove rnment who exercise “general governmental powers over the entire geographic area served by the body.” 390 U.S. at 485. Central to the Court’s holding was the idea that citizens should have a voice in the selection of the public officials charged with ensuring their well-being. The Court observed that “the States universally leave much policy and decision making to their governmental subdivisions,” id . at 481, and that there is no difference, for equal protection purposes, “between the exercise of stat e powers through legislatures and its exercise by elected officials in the cities, towns, and counties.” Id

. Political participation is a recurring theme in the post- Reynolds voting rights cases, with the Court extending one person, one vote to minor elective offices because equal participation is required whenever a public offi cial has the power to affect the day-to-day affairs of the electorate. In Hadley , for instance, the Court a pplied one person, one vote to elections for trustees of a junior-college district. Hadley , 397 U.S. at 53-54. As in Avery , the inquiry hinged on whether the el ected trustees performed “general governmental functions,” with a focus on the scope of the official power and its impact on the electorate: We feel that these powers, while not fu lly as broad as those of the [county- 7 - commissioners in Avery ], certainly show that the trustees perform important governmental functions within the dist ricts, and we think these powers are general enough and have sufficient imp act throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here. Id

. Even the Court’s decision in Kramer , perhaps the most sweep ing interpretation of Reynolds to date, is grounded by the principle that voters should be given an equal opportunity to participate in elections affecting their daily lives. 395 U.S. at 626.
Kramer involved a challenge to a system for school district elections; it limited voting eligibility to local parents and those who ow ned or leased property in the district. Id . at 623. In extending Reynolds to school board elections, the C ourt considered strict scrutiny to be appropriate when “a challenged state st atute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others. . . .” Id. at 627. This broad language is at the heart of the challengers’ assertion that Reynolds applies to all state and local elections, without regard to the powers of the office. But as with Avery before it and Hadley after, the Court’s decision in Kramer frames the right to vote in terms of its relationship to particip atory democracy. The Court described the franchise as bound up with the “leg itimacy of representative government,” id. at 626, and explained that “[s]tatutes granting the franchi se to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives.” Id . at 627. The Court did not say what force, if
any, Reynolds has in elections for governmental o ffices which do not affect the daily lives of the electorate.- 8 - The Supreme Court has carv ed out an exception to Reynolds for limited-purpose bodies exercising narrow govern ment functions and operating to the burden or benefit of one group of constituents more than others. Ball v. James , 451 U.S. 355, 371 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. , 410 U.S. 719, 729 (1973). The exception is seldom applied, and to da te the only special-purpose bodies to have benefited from the Supreme Court’s relaxed scrutiny are water and power districts in which the administration is financially indepe ndent of local government and the franchise is restricted to farmers. See Ball , 451 U.S. at 370-71; Salyer Land Co. , 410 U.S. at 729; Associated Enters. v. To ltec Watershed Imp. Dist. , 410 U.S. 743 (1973). The challengers contend the right to vote for members of the Commission is just as weighty as their right to vo te in other public elections. 4 They maintain the right may not be burdened unless the lim itation is necessary to furthe r a compelling state interest, and no compelling interest has been identified he re. They claim the district court’s ruling runs afoul not only of Supr eme Court precedent, but also this court’s decision in Hellebust v. Brownback , 42 F.3d 1331 (10th Cir. 1994 ), where this court decided elections for members of a stat e agriculture board could not be constitutionally restricted to delegates from the agriculture industry. 5

4 To be clear, the challe ngers do not take issue with the composition of the nomination commission, only w ith the restrictions on who is eligible to vote for the commission’s lawyer members. 5 The challengers would have no obje ction to the nomina tion process if the Governor had authority to appoint all nine commission members.- 9 - B. Before turning to the merits of the ch allenge, it is necessary to first resolve a dispute over the appropriate level of scrutiny. The challengers argue strict scrutiny is required for any election of “general intere st,” which would appear to encompass any state or local election not satisfying the Salyer and Ball criteria. Kansas proposes a more limited inquiry, one constrained by a threshold requirement: the elected office in question must exercise general governmental functions . Under this approach, before determining whether the elective office is of general or limited interest—that is, before deciding whether to apply strict scrutiny under Reynolds or rational-basis review under Salyer and Ball —we must determine whether the office is in fact “governmental,” as that term is used by the Supreme Court. Kansas has identified the correct approach: a threshold inquiry is appropriate. The strict demands of Reynolds cannot reasonably apply to every election unable to be wedged into the fact-bo und and exceedingly narrow exception established in Salyer and Ball . Such an inflex ible rule would make hash of qualifying language in Avery and other decisions restricting Reynolds to elective offices exercisi ng “general governmental powers.” Hadley , 397 U.S. at 53-54; Avery , 390 U.S. at 485. It stands to reason from this language, which appears in the Court’ s decisions as a standalone requirement, independent of the Salyer / Ball inquiry, see Hadley , 397 U.S. at 53-54 , Avery , 390 U.S. at 485, that one person, one vote has boundaries ; some elective offices (apart from the special-purpose districts described in Salyer and Ball ) do not exercise the type of governmental power contemplated in Reynolds . Launching into the Salyer / Ball analysis- 10 - without first considering this limitation would render the “general governmental functions” language meaningless—an untenable re sult, for the phrase is too central to the Court’s voting rights jurisprudence to be ignored. See Bd. of Estimates v. City of New York , 489 U.S. 688, 693 (1989); Ball , 451 U.S. at 362; Town of Lockport v. Citizens of Cmty. Action , 430 U.S. 259, 260 (1977); Concerned Citizens of Southern Ohio v. Pine Creek Conservation Dist. , 429 U.S. 651, 659 (1977) (Rehnquist, J., dissenting); Salyer Land Co. , 410 U.S. at 727; Associated Enterprises, Inc. , 410 U.S. at 748; Hadley , 397 U.S. at 53-54; Avery , 390 U.S. at 485. What is more, the challengers’ contention that Reynolds applies to all state and local elections without rega rd to their subject clashes with the Supreme Court’s admonition that one person, one vote should not be applied as a “uniform straitjacket” to restrict states and localities in “devising me chanisms of local government suitable for local needs and efficient in solving local problems.” Avery , 390 U.S. at 485. Consistent with the time honored regard for states as laboratories for public policy, the Court has acknowledged that the voting-rights decisions must be tempered by the need to permit experimentation with the structure and organization of government. Ball , 451 U.S. at 373; see also Gregory v. Ashcroft , 501 U.S. 452, 460 (1991). But there is scarce room for experimentati on in a world where every election, save the exceptional Salyer / Ball scenario, is subject to the exacting scrutiny of the federal courts. The need for flexibility is heightened where, as is true of this commission and dozens like it around the country, the challe nged election involves a government body serving a structural role in the main tenance of the separation of powers. See Whalen v.- 11 - United States , 445 U.S. 684, 689 n.4 (1980) (“[T]h e doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States.”); Sweezy v. New Hampshire , 354 U.S. 234, 255 (1957). The Seve nth Circuit recogni zed as much in rejecting an analogous interpretation of Reynolds : The plaintiffs believe that whenever a state decides to make an office elective, all the principles that the Supreme Court has extrapolated from the First and Fourteenth Amendments to re gulate the electoral process are fully applicable. If this were so, it would be inconsistent with the principle that the federal Constitution does not pres cribe any particular separation of powers, or other internal structure, of state government. Pittman v. Chicago Bd. of Educ ., 64 F.3d 1098, 1101 -02 (7th Cir. 1995). By the same token, the Third Circuit ha s distinguished “gener al public elections” involving offices performing “general govern mental functions” from elections involving less influential offices like a university board of trustees which “controls no viable political sub-division and has less power than a local school district.” See Benner v. Oswald , 592 F.2d 174, 182-83 (3d Cir. 1979). No tably, in rejecting a challenge to the trustees’ election, the Thir d Circuit did not mention Salyer Land Co. ( Ball had yet to be decided) or the relaxed scrutiny appropriate for elections involving “functionaries whose duties are so far removed from normal governme ntal activities and so disproportionately affect different groups,” Salyer Land Co. , 410 U.S. at 727-28 (internal quotations omitted). Benner , 592 F.2d at 182-83. Rather, the Court rejected the challenge at the threshold, refusing to equate the right to vote for a university trustee and the right to vote in a participatory democracy. Id . (“[The board of trustees] simply does not possess the minimum governmental powers associated with municipal, school district, county, state,- 12 - or federal offices.”); but see Carlson v. Wiggins , 675 F.3d 1134, 1140 (8th Cir. 2012) (rejecting similar challenge to Iowa’s merit se lection system on the ground that the state’s judicial nomination commission fit Salyer ’s definition of a sp ecial-purpose entity). In keeping with these deci sions, I agree with the Th ird and Seventh circuits; simply making an office elective does not trigger the strict demands of Reynolds

. See
Pittman , 64 F.3d at 1102; Benner , 592 F.2d at 182-83. Thos e demands apply only when the elective office exercises the kind of ge neral governmental func tions described in Avery and its progeny. C. It follows from these principl es, that the Commission does not exercise the type of governmental functions necessary to trigger stri ct scrutiny. Since this is an appeal from a dismissal under Federal Rule of Civil Pr ocedure 12(b)(6), our review is without deference. Peterson v. Grisham , 594 F.3d 723, 727 (10th Cir. 2010). Although the Supreme Court has not provided an exhaustive list of “general governmental functions,” the meaning of the term can be gleaned from the circumstances in which it is has been invoked. Without exception, those circumstances involve local governmental bodies whose activities have a direct and immediate effect on voters. In Avery, it was a body of commissioners with authority to set tax rates, oversee a budget, and issue bonds, Avery , 390 U.S. at 485; in Kramer and Hadley , education boards wh ich, in addition to administering a school system, had authority to annex new sites and decide matters of local taxation, Hadley , 397 U.S. at 53-54; Kramer , 395 U.S. at 626. And while the Court’s decisions in City of Phoenix v. Kolodziejski , 399 U.S. 204, 209 (1970), and- 13 - Cipriano v. City of Houma , 395 U.S. 701, 705 (1969), involved referenda on municipal bonds rather than elections fo r public office, the principle informing the rulings was the same: excluding otherwise qualified voters was improper because all voters, not just property owners, were aff ected by the bond offerings. The challenge to the Commission has no place in this line of cases. For strict scrutiny to apply, there must be a causal re lationship between the elective office and its effect on the electorate. See Hadley , 397 U.S. at 53-54. The office must exercise

“ general ” government power and must exercise it “ over ” the geographic area served by the body, so that its wo rk has a “sufficient impact” on the electorate. Id

. The Commission, which can neither make law nor ad minister it, plainly has no such general power. The Commission is removed from the da y-to-day decisions affecting the lives of the electorate. It has no say in matters of sa fety or welfare—no authority to levy taxes, issue bonds, condemn property, or build road s. Mostly it sits idle, staffless and budgetless, and what limited au thority it does have is exercised not “over” a political subdivision, in the way that cities and districts and sch ool boards exercise power over their constituents, but rather in service of its structural role in the judicial appointment
process. Since the powers of the Commission are no t of the type typically exercised by a popularly elected body, the challengers gain no traction by appealing to the principle of democratic legitimacy. Limiting the franchise to attorneys will neither “strike at the heart of representative government,” Reynolds , 377 U.S. at 555, nor de prive qualified voters of their “inalienable right to full and effectiv e participation in the political process,” id . at- 14 - 565. Those principles animate the holdings in Reynolds and other landmar k voting rights decisions, but they do not resonate in th is case, because the legitimacy of the Commission’s work is not contingent on the popu lar election of its members. Forged in the ashes of the Kansas triple play, the Co mmission is designed to ensure the conduct of the executive branch does not threaten the integrity of the judicial branch. Its charter concerns the distribution of power within an d among the various organs of government; it is a structural body, not a representative one. If anything, respect for the democratic process cuts against the challengers’ position, which if adopted would frustrate the will of the Kansas people, as embodied in the state constitution. The constitutional amendment creating the Commission has been in place for more than half a century; its vintage a testamen t to the state’s time-honored commitment to judicial independence. Cf

. Van Orden v. Perry , 545 U.S. 677, 702-03 (2005) (Breyer, J., concurring) (noting the lo ng history of a challe nged religious display as one factor in favor of its constitutional legitimacy). The challengers maintain th e Commission’s governmental function lies in the role it plays in the appointment process. Acco rding to them, appointing judges is a core executive duty in which the Commission plays an indispensable role. Not only does this view misconceive the purpose of the Co mmission, but it conflates the Commission’s authority with that of the governor. Alth ough the appointment power does traditionally fall to the executive, it is th e governor, not the Commission, who performs it in Kansas. The Commission, in interviewing candidate s and recommending suitable nominees, performs a carefully circumsc ribed intermediate role. That role—winnowing a candidate- 15 - pool to cabin the governor’s discretion and ensure he chooses from only qualified nominees—is not a traditional government functio n, but rather a structural innovation of the merit-selection system. If anything the role is anti-governmental , in that it is carved from the governor’s previously unlimited aut hority to make judicial appointments and vested in an independent commission of citizens. 6 The Eighth Circuit reached a similar conc lusion in rejecting an equal-protection challenge to Iowa’s merit selection system. See Carlson , 675 F.3d at 1136, 1141. “[T]he sole function of the Commission,” the court expl ained, “is to screen the applications it receives and select from these applications th e three most qualified candidates to forward to the Governor for judicial appointments.” Id . at 1141. Since Iowa’s governor retains the ultimate power to make judicial appoint ments, the court rejected the challengers’ “attempt to equate the powers of the Commiss ion with the powers of the Governor.” Id

. at 1140. Finally, the challengers say our decision in Hellebust compels reversal of the district court’s decision. In Hellebust , this court struck down a statute providing for the election of the Kansas Board of Agriculture by a select group of delegates from the agriculture industry on the ground that it violated the on e person, one vote rule. 42 F.3d

6 Appellants seem to have no quarrel with the Governor’s power to appoint some Commission members (non-lawyers) and, presum ably, all members. But, as history teaches, the Commission was estab lished to constrain gubernatorial power and influence. Whether that goal is best accomplished by empowering lawyers with diverse political interests, but strong institutional loyalty to the third branch of government and intimate knowledge of the courts and would-be judges, s hould best be left for the people to decide, as they have.- 16 - at 1332, 1134-35. The challe ngers contend the facts in Hellebust are materially indistinguishable: in both cas es, they observe, the state held elections for public office while depriving certain qualified voters of the right to vote on equal terms with others. The challengers overlook a crucial di stinction between this case and Hellebust

. The issue here—whether the elective office meets the “general government functions” threshold—was taken for granted in Hellebust , where the analysis fo cused not on whether the agriculture board is governmental (it plainly was), but whether the authority it exercised was sufficiently narrow in reach and disproportionate in effect to satisfy the Salyer / Ball exception. Hellebust , 42 F.3d at 1334. Since the Commission does not exercise the type of governme ntal power contemplated in Reynolds , there is no reason to address the application of the Salyer / Ball exception, and thus no occasion to consider the applicability of Hellebust

. In the end, this court must defer to Kansas in decisions relating to the structure of its government. See Gregory, 501 U.S. at 460 (“Through th e structure of its government, and the character of those who exercise govern ment authority, a State defines itself as a sovereign.”). Kansas voters adopted merit selecti on as a middle ground between an appointment process scarred by abuse a nd an elective process susceptible to politicization. By giving lawyers a controllin g vote on the Commission, Kansas could cabin the governor’s appoin tment power while still protecting the judiciary from the corrosive force of popular politic s. The structural role of the Commission, considered in combination with its decidedly non-governmen tal functions, takes it out of the heartland of the voting rights cases, making it unnece ssary to consider whether members are- 17 - elected in acco rdance with Reynolds . And since no fundamental right is at stake, the deference to democratic process that inform s rational-basis review requires upholding the challenged law if we can imagine a conceivable justification for it. See Vance v. Bradley , 440 U.S. 93, 97 (1979); Ball , 451 U.S. at 371. I would ha ve no difficulty doing that here. Kansas designed the Commission to favor la wyers in order to limit the influence of politics on the nomination process and ensure the quality of its judicial nominees. Preserving the quality and inde pendence of the judiciary is a legitimate government interest, and having attorney s elect a majority of the Co mmission’s members is a rational way to accomplish that goal. Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation. This is owing in pa rt to their training, which enables informed judgments about a ca ndidate’s experience—his credentials, his area of expertise, his body of work—and the extent to which it strengthens or weakens his candidacy. Another part is propin quity—typical of many tightly knit legal communities like the Kansas ba r, attorney members of the Commission will often be personally familiar with a candidate, whether by virtue of having worked with her (or appeared before her), or else becau se they know someone who has. For the foregoing reasons, the equal prot ection challenge to the election of the Commission’s attorney members fails. I concur in the Order and Judgment.10-3320, Dool, et al. v. Burke, et al. MATHESON , J., concurring

I would affirm on the same grounds as Carlson v. Wiggins , 675 F.3d 1134 (8th Cir. 2012), which rejected a simi lar challenge to Iowa’s merit judicial selection system. The Eighth Circuit determined that Iowa’s limitation on vo ting for attorney members of its nominating commission to Iowa lawyers wa s entitled to rational basis review because the commission performs a limited purpose, affects attorneys more than others, and therefore meets the Supreme Court’s Salyer/Ball standard. See id. at 1140-42; see also Ball v. James , 451 U.S. 355, 370–71 (1981); Salyer Land Co. v. Tula re Lake Basin Water Storage Dist ., 410 U.S. 719, 728 (1973). Judge O’Brien’s concurring opinion conc ludes that the elec tion of attorney members to the Kansas Supreme Court Nominating Commission (“Commission”) does not fit in the line of strict scrutiny cases that flow from Kramer v. Union Free School District No. 15 , 395 U.S. 621 (1969). It also maintain s that the franchise restriction does not fit comfortably within the Salyer/Ball exception to Kramer . It concludes that, because the Commission do es not perform general governme nt functions, the restriction on who may vote for attorney members of the Commission should not require strict scrutiny. I agree that strict scrutiny shou ld not apply, but I would rely on Salyer/Ball to reach this conclusion. In Hellebust v. Brownback , 42 F.3d 1331 (10th Cir. 1994), we stayed within the Supreme Court’s Kramer/Salyer framework to affirm a successful equal- 19 - protection challenge to a franchise restricti on on the election of members to the Kansas State Board of Agriculture. Limiting the vo te to delegates of Kansas agricultural organizations who attend the Board’s annual meeting fell outside the Salyer/Ball exception because the Board exercised “nor mal functions of state government.” Id . at 1335. The Board also did not have a disproportionate effe ct on the voting delegates. Id. As in Hellebust , we can employ the Salyer/Ball standard here to determine whether rational basis scrutiny applies to restricting the voting franchise for the Commission’s attorney members to licensed Kansas attorney s. We need only decide whether the Commission performs a lim ited purpose and whether it has a disproportionate effect on the voting po pulation of attorneys. It does both. The Commission performs a limited role. It reviews applications for judicial vacancies and proposes a slate of three candidates from which the Governor appoints one to an op en position. The Commission does not make, administer, or enforce laws. It has no taxing or borrowing authority. See Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo ., 397 U.S. 50, 53 (1970); Ball , 451 U.S. at 366 (noting that the water and power district at issue could not ma ndate ad valorem taxes, enact laws, or “administer such normal functions of govern ment as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services”). To meet the Salyer/Ball standard, it is not necessary that the Commission perform

no government tasks. The wa ter districts at issue in Ball and Salyer exercised some government functions. For example, both of the districts could issue bonds and condemn property using eminent domain. See Ball , 451 U.S. at 360; Salyer , 410 U.S. at 730 n.7.- 20 - However, the districts’ powers were limited. The Commission’s power is arguably even more limited. It performs one step in a judicial appointment process—screening applicants and selecting three nominees—tha t concludes when the Governor appoints. The Commission also disproportionately affe cts attorneys. On ly licensed Kansas attorneys may be nominated to serve as judges on a Kansas appellate court. See Kan. Stat. Ann. § 20-105 (Supreme Court); id. at § 20-3002(a) (Court of Appeals). The Commission’s task is to nominate attorney s to serve on the bench. Because only attorneys may apply, the screening process aff ects attorneys more than it affects others. The Commission’s selection of judicial nom inees may to some degree affect the makeup of the Kansas judiciary a nd, therefore, affect the public at large. But the question is not whether those seeking the vote are affect ed to some degree, but “whether the effect of the entity’s operations on [t he voting group is] dispropor tionately greater than the effect on those seeking the vote.” Ball , 451 U.S. at 371. The voting group need not be “the only parties at all affected.” Id. Our focus is on the Commi ssion’s effect, not the effect of the judiciary as a whole. The Commission’s role in choosing from the Kansas legal community the three most qualified a pplicants for a judicial vacancy has a disproportionate impact on the bar re lative to the general population. Whether the Commission serves a narrow, limited purpose and whether, as Judge O’Brien’s concurrence suggests, it does not exercise a general government function may be two sides of the same coin . But keeping a tie to the Kramer/Salyer framework is consistent with Hellebust and Supreme Court precedent. Accordingly, I conclude that because the Commission serves a limited purpose—- 21 - arguably more limited than the water districts in Salyer and Ball —and because it affects attorneys more than ot hers, the franchise limitation on vo ting for attorney members of the Commission to Kansas lawyers must bear only a rational relationship to the objectives of the merit selection process. For many of the reasons stated in Judge O’Brien’s concurring opinion, that sta ndard is easily met here. Finally, one court has questioned wh ether the selection of attorney members for a nominating commission even qualifies as a popular election as contemplated by the Kramer/Salyer precedent because the entir e process is essentially appointive rather than elective. See Bradley v. Work , 916 F. Supp. 1446, 1456 (S.D. Ind. 1996) (explaining that a commission nomina tion system did not constitute a popular election but was closer to an executive appointment). U nder this view, regardless of whether the Kansas Bar Association’s Board of Governors were to appoint the attorney members—as the Board of Governors does in Alaska, see Kirk v. Carpenti , 623 F.3d 889, 890 (9th Cir. 2010)—or whether members of the Kansas Bar choose them by voting, the attorney members join w ith four others appointed by the Governor to become part of an executive branch appointm ent process. That seems to be a far cry from the school board election in Kramer or even the water district election in Salyer . Nonetheless, as this case can be resolved because the Commission serves a limited pu rpose and affects attorneys more than others, I would affirm under Salyer/Ball

.10-3320, Dool v. Burke McKAY , dissenting. The end objective of the process at issue is the selection of judges whose impact is fundamentally general. The impact of this process on the employment of lawyers is of little consequence when measured against its impact on litigants and the rules governing social behavior.
In Salyer and Ball , the end impact was on discrete groups. That is, the election in those cases directly determined the governing officers for a water district that “disproportionately affect[ed] landowners.” Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. , 410 U.S. 719, 729 (1973). The general public was only nominally impacted. Moreover, “the provision of [utilities] is not a traditional element of governmental sovereignty, and so is not in itself the sort of general or important governmental function that would make the government provider subject to the doctrine of the Reynolds case.” Ball v. James , 451 U.S. 355, 368 (1981) (citation omitted). “[T]he relationship between [residents] and the District’s power operations is essentially that between consumers and a business enterprise from which they buy.” Id. at 370. Here, by contrast, the election at issue is for a majority of the members of the nominating commission which limits the governor as judicial-appointing authority to one of three candidates. The selection of judicial candidates is quintessentially governmental in nature, and a judicial nominating commission “bears no resemblance at all to the nominally public business enterprises at issue in Ball .” Nelson Lund, May Lawyers Be Given the Power To Elect Those who Choose Our Judges? “Merit Selection” andConstitutional Law , 34 Harv. J.L. & Pub. Pol’y 1043, 1053 (2011). “This nominating power has to be regarded as a governmental function, and subjected to strict scrutiny, for the same reason that the Supreme Court applies strict scrutiny to primary elections conducted by political parties and elections to the electoral college.” Id. at 1053-54 (footnote omitted). The fact that only lawyers may serve on the bench adds little to the weighing process, given the strong public interest in the selection of state court judges. The election at issue, like a primary election, is one step in the process of determining who will exercise one of the three most critical governmental functions: here, the judicial function. This election is not shielded from constitutional challenge simply because its role in this process is indirect: “Presidential elections, for example, are subject to scrutiny under Reynolds , notwithstanding the intermediating role of the electoral college.” Id. at 1049. Nor does the governor’s final say in the appointment process insulate the nominating commission election from constitutional concerns. The nominating commission does not simply screen and recommend candidates in an advisory fashion—it presents three possible candidates to the governor, one of whom he must select even if he finds all three unacceptable. This process is subject to manipulation, as the commission can effectively choose its own candidate by nominating only one acceptable choice along with two individuals it knows the governor will not select. See id. at 1050. “By delegating to the state’s lawyers the authority to elect a controlling majority of a body that exercises almost all of the discretion involved in appointing supreme court justices,
-2-Kansas has virtually given the state bar the authority to elect those who choose the justices. The State’s choice of a complex procedure that obscures that effect cannot alter the reality of the effect.” Id. at 1055. Moreover, there is not even the saving grace of confirmation of the appointment choice by the legislature (a representative elected body). I would find the election unconstitutional under the Supreme Court’s equal protection jurisprudence.

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