Supreme Court of Kansas explores constitutionality of revised congressional redistricting map

Kansas attorney general files appeal after district court declares map unconstitutional

by Tim Carpenter, Kansas Reflector

Topeka — Justices of the Kansas Supreme Court stepped into an explosive legal and political drama Monday triggered by the Legislature’s decision to split the state’s most diverse county between two congressional districts and relegate Lawrence to the rural conservative 1st District reaching into western Kansas.

A Wyandotte County District Court judge ruled the map carving the state into four congressional districts based on the 2020 U.S. Census violated the Kansas Constitution. Attorney General Derek Schmidt filed an appeal with the state Supreme Court seeking reversal of the judge’s opinion in a case that consolidated three lawsuits against Secretary of State Scott Schwab and election officials in Douglas and Wyandotte counties.

The 20 individual plaintiffs argued the map strategically engaged in partisan gerrymandering to undermine Democrats and diluted the voice of minority voters in violation of the constitution’s equal protection clause.

Brant Laue, the Kansas solicitor general and representative of Schmidt during oral argument before the Supreme Court, said the federal courts were the proper jurisdiction for a gerrymandering case and the state courts in Kansas shouldn’t be entering into the political map-making fray. He said the Legislature did nothing improper that would justify invalidating action by elected representatives and senators on a U.S. House map.

“For the first time in Kansas history, the court has invalidated a congressional redistricting map holding partisan gerrymandering violates assorted provisions of the Kansas Constitution, which have never before been applied in this way,” Laue said.

The Republican majority in the Legislature secured passage of a Kansas map of U.S. House districts that offered the GOP a better chance of unseating U.S. Rep. Sharice Davids, the Democrat serving the 3rd District, which has included all of Wyandotte and Johnson counties. In addition to moving a diverse population in Wyandotte County to the 2nd District, Republicans in the Legislature shifted liberal Lawrence from the 2nd District to the conservative 1st District.

The alignment of congressional districts was viewed as favorable to Republican U.S. Rep. Tracey Mann of the 1st District, U.S. Rep. Jake LaTurner of the 2nd District, U.S. Rep. Ron Estes of the 4th District and to likely 3rd District Republican candidate Amanda Adkins. Adkins lost to Davids in 2020, but the new map would no longer include the top half of Wyandotte County, which is considered a Democratic stronghold.

The map’s challengers referenced comments made two years ago by former Senate President Susan Wagle, who said the Republican Party needed a supermajority in the House and Senate to craft a congressional map designed to deliver GOP wins in all four districts. The GOP used those two-thirds majorities to produce the map and override Democratic Gov. Laura Kelly’s veto of their plan for distributing constituents among U.S. House districts.

‘Government retaliation?’

Justice Dan Biles, appointed to the court by Democratic Gov. Kathleen Sebelius, said the state Legislature adopted a congressional map that involved “targeting other citizens” for the way they voted in the past.

“Why can’t this also be about political retaliation — let’s say government retaliation?” Justice Biles said. “Action against these people based on what they’ve done in the past. Isn’t that government retaliation?”

Laue said he disagreed with Justice Biles’ premise and nothing in the court record suggested a majority of the Legislature engaged in an electoral vendetta.

“To say that this is some sort of retaliatory claim is simply wrong,” Laue said. “It’s politics. There are winners and losers in politics.”

Sharon Brett, legal director for the American Civil Liberties Union of Kansas, told justices the trial judge in Wyandotte County concluded the Legislature engaged in intentional racial discrimination in violation of the state constitution.

The Legislature’s map ran contrary to the state’s Bill of Rights, which declared all people had equal rights, that all political power was inherent in the people and that government existed for the equal protection and benefit of citizens, she said.

“Racial voter dilution and partisan gerrymandering are antithetical to those core constitutional principles,” Brett said. “It classifies and favors one group of voters over another. It distorts and manipulates the map to advantage those in power.”

The Kansas case is highly unusual because previous lawsuits challenging redistricting boundaries were filed in U.S. District Court.

Lali Madduri, of the Elias Law Group in Washington, D.C., said the Kansas judicial branch, as a co-equal branch of government, had the power to review and, if necessary, strike down acts of the Legislature that violated the constitution. To read the federal constitution in a way that would limit ability of Kansas courts to remedy violations of the state’s constitution was contrary to bedrock notions of federalism, she said.

“It’s repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts,” Madduri said. “No court has endorsed their radical argument, and this court should not be the first.”

Peoples’ constitution

Attorney Stephen McCallister, who represented a Douglas County plaintiff, said it was wrong for the Republican majority in the Legislature to rip Lawrence from the rest of Douglas County so the city’s voters would be less relevant in congressional elections.

“They’re not serving the people here. They’re serving themselves,” McCallister said of the GOP-crafted congressional map. “This court is the protector of the peoples’ constitution.”

He said the state Supreme Court should uphold the district court’s ruling declaring the map unconstitutional. If a majority of justices agreed, he said, the Supreme Court shouldn’t mandate the Legislature redraw the map. The justices could set a deadline for delivery of a revised map and allow the Legislature to decide whether it was interested in trying a second time.

“There’s no reason this court couldn’t do it,” McCallister said.

If the Kansas congressional map was ruled constitutional by the state Supreme Court, the boundary lines would be relied upon for the next 10 years if not successfully challenged in the U.S. Supreme Court. If the justices affirmed District Court Judge Bill Klapper, the Legislature could seek an appeal before the nation’s highest court.

Judge Klapper, appointed to the district court by GOP Gov. Sam Brownback in 2013, published a 200-page opinion in April that said Kansans expected lawmakers to create political maps that resulted in “a level playing field devoid of partisan advantage for one group.” He said the constitution protected against political gerrymandering that divided communities of color.

“This court suggests most Kansans would be appalled to know how the contest has been artificially engineered to give one segment of the political apparatus an unfair and unearned advantage,” Judge Klapper wrote.

The Supreme Court didn’t issue a decision in the congressional map case at the end of more than two hours of argument. The state’s candidate filing deadline is June 1, but that could be extended by the Supreme Court. A secondary timeline issue is that Kansas ballots sent to Kansas military service members must be mailed by June 17. The primary election is Aug 2.

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