Lawyers, Kansas Supreme Court justices spar on constitutionality of redistricting plans
In a historic first, lawyers faced off before the Kansas Supreme Court Monday over the constitutionality of a set of GOP-authored congressional maps struck down by a lower court judge last month.
It is unclear from the arguments which way the justices are set to rule on the matter, the first time they have been asked to adjudicate whether the Kansas Constitution can be interpreted to apply to redistricting.
Attorneys defending the maps argued politically slanted lines were an inherent part of allowing legislators to handle redistricting, though this perspective earned pushback from some members of the high court.
Meanwhile, lawyers representing three sets of challengers to the maps' allowability argued they were produced from a clear intent to hamstring certain racial and political groups, clashing with one of the court's conservative judges in the process.
At issue is whether the district lines illicitly divide the Kansas City, Kan., area, as well as improperly place Lawrence in the sweeping 1st Congressional District dominated by western Kansas.
The maps were enacted by the Legislature over the veto of Gov. Laura Kelly but were later struck down when Wyandotte County District Court Judge Bill Klapper ruled the maps to be racial and partisan gerrymandering in an April ruling.
Government lawyer said redistricting plan product of ‘politics’
In his arguments before the court, Solicitor General Brant Laue acknowledged the "unprecedented district court decision" and said there was no room in the Kansas redistricting process for courts to overturn the product of the Legislature.
There were virtually no limits under the state constitution, he said, blocking legislators from pursuing political gerrymandering if they chose to do so.
Aggrieved citizens could vote in new officials in the Legislature or approve a constitutional amendment that creates a non-partisan redistricting mechanism — something present in a half-dozen states.
More:Kansas billed over $250K to defend congressional map — with battle in high court still to come
"It is politics," Laue said. "There are winners and losers."
But Justice Dan Biles pushed back on this rhetoric, saying it was legitimizing a "boys will be boys" attitude.
"How is partisan gerrymandering ever a legitimate government interest?" he said.
In the lawsuits, critics of the maps argue they run afoul of specific provisions in the state constitution bill of rights, notably provisions guaranteeing equal rights and political power
"Racial vote dilution and political gerrymandering are antithetical to these core constitutional provisions," Sharon Brett, legal director for the ACLU of Kansas, who represents one set of plaintiffs.
But Laue argued the maps do not fundamentally undercut the ability of individuals to vote or petition their government, saying there is no evidence it violates the federal Voting Rights Act of 1965 or the holding that the voting power of one individual be equivalent to another person.
"No one's First Amendment rights are violated here," he said. "People are allowed to speak and campaign as they wish … This doesn’t interfere with a right to assemble."
Map critics argue votes of racial, political minorities to be cut out
Brett maintained a core argument of the map's opponents, namely the map illicitly moves minority voters from the 3rd Congressional District, represented by Democrat U.S. Rep. Sharice Davids, to the heavily Republican 2nd Congressional District.
Critics say this would deprive those voters of electing their candidates of choice by separating minority Democrat voters from other left-leaning voters.
"Here what the map makers did and what the district court found by substantial and overwhelming evidence ... is the mapmakers set out with the intention of drawing an entire political party out of power," Brett said. "A party that had the ability to elect a representative of their choice previously and now does not."
But this drew fire from the court's most outspoken conservative member, Justice Caleb Stegall.
If the map's opponents were to prevail, he asked, would Libertarian or Green Party voters be entitled to an outsized protection of their political power.
"There are certainly individuals whose preferred candidate has never won an election," Stegall said. "Are you suggesting they don’t have the same constitutional prerogatives as the people who always vote for the most popular candidates."
Stephen McAllister, an attorney representing a group of Lawrence residents, argued the map effectively eliminates the voice of voters in the predominantly left-leaning city by "burying it in a sea of red" in the 1st Congressional District.
"Now they have been very deliberately targeted because of their votes," McAllister said.
But Justice Evelyn Wilson responded that said she was leery of dictating to the Legislature which policy option is better.
"When you ask me to get into the area of looking at policy and making policy decisions, am I stomping on another branch of gov inappropriately?" Wilson said. "I need to know what my standards are so I can do what a court is supposed to do."
The high court will need to move quickly in their deliberation. The filing deadline for 2022 races is on June 1, though this can be extended an additional 10 days. Further delays, however, would quickly jeopardize the June 17 date when ballots are mailed to military and overseas voters.
Speaking with reporters after oral arguments, Attorney General Derek Schmidt cautioned of the long-term ramifications for future redistricting efforts if the high court were to strike down the maps.
"I do think there is no natural end to it," he said. "My strong suspicion is, every 10 years, after the Congressional maps are redrawn, whoever is dissatisfied will come to this side of the street (to the Kansas Judicial Center) and repeat in legal terms the same arguments that were rejected on the other end."
Lawyers also face off on state legislative maps
A different set of parties also sparred over the legality of Kansas Senate and Kansas House districts, approved by the Legislature in April.
State statute dictates the supreme court review those lines, though Sen. Tom Holland, D-Baldwin City, led a group of critics who argued the justices should reject the lines and order lawmakers to draw new maps.
The state legislative districts drew fewer slings and arrows than its Congressional brethren, though Holland was a notable exception. His Douglas and Leavenworth county districts was effectively eliminated and consolidated with that of a Republican foe, Sen. Beverly Gossage.
The move likely imperils Holland's odds of seeking re-election and Mark Johnson, an attorney representing the senator argued the new lines represent a needlessly seismic shift, saying the district "blew up like a balloon," despite population growth in the region.
The change, he argued, the product of what he termed a flawed legislative process.
"In this situation, the flaws in the process led to two districts being drawn in such a way that they do not comport with the rules, the guidelines that the legislature had and said it would follow," Johnson said.
This argument was met with a muted response from many of the justices. Justice Dan Biles said there was no legal standard by which the court could reject maps when a bill was legally passed but the process was of dubious transparency.
"What can we do about that? We’re just a court," Biles said. "We can’t make these guys play nice with each other. We can’t tell them to put down their phones, we can’t tell them to listen … I just don’t see how that translates into anything we can do in our spot."
Attorney General Derek Schmidt urged the justices to stick to past precedent in evaluating the maps, including a review of the maps' contiguity, compactness and treatment of racial and ethnic minorities.
"The concept that there is always someone unhappy when the music stops and the new districts are drawn is certainly not foreign," Schmidt said. "It happens every time there is reapportionment."
Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.