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Kansas congressional redistricting prompts a court debate over partisanship versus democracy

Kansas Supreme Court Justice Dan Biles gesturing from the bench.
Thad Allton
/
for Kansas Reflector
Kansas Supreme Court Justice Dan Biles gestures during afternoon arguments over the newly drawn congressional maps.

A map drawn by legislative Republicans was thrown out by a lower court on grounds that it discriminated against people of color and Democrats.

Lawyers seeking to have the Legislature’s congressional redistricting map thrown out argued today to the Kansas Supreme Court that the proposed boundaries weaken the representation of minorities and traditionally Democratic voters.

But defenders of the Republican-drawn map said the court should not weigh in on what is an inherently partisan process, and that the Kansas Constitution has no explicit prohibition of political gerrymandering.

“Congressional redistricting is political by design,” said Brant Laue, Kansas Solicitor General. “The U.S. and Kansas constitutions wisely entrust this task to political actors in the Kansas Legislature. Political considerations cannot be avoided when redrawing district lines.”

Those challenging the new map said the state high court has the ability to consider whether the map is in harmony with the state’s Bill of Rights. Their argument centered on the Bill of Rights section guaranteeing equal protection.

“The mapmakers set out with the intention of drawing an entire political party out of power,” said Sharon Brett, an ACLU lawyer representing one of three groups of plaintiffs against the plan.

Lali Madduri, who represented a different group of plaintiffs, said the defense argument boils down to denying the state the right to review its own constitution.

“In the defendants’ view, this court and all state courts must stand idly by whenever the state gerrymanders congressional maps,” she said. Their interpretation, Madduri said, “would give the Legislature carte blanche to violate the Kansas Constitution and dilute the votes of Kansans in federal elections.”

The state supreme court is the latest step on a journey that began in February when Gov. Laura Kelly vetoed a redistricting map drawn in the Republican-dominated Legislature.

The new map, called Ad Astra 2, changes the boundaries of the state’s four congressional districts in a way that critics say dilutes the strength of minority votes and gerrymanders away the district now held by Rep. Sharice Davids, the lone Democrat from Kansas in Congress.

The plan also divides Wyandotte County along Interstate 70 and puts Lawrence, typically a liberal-leaning area, into a district that stretches across conservative western Kansas.

After Kelly’s veto was overridden, a group of voters challenged Ad Astra 2 in district court.

Wyandotte County District Court Judge Bill Klapper ruled in April that the new districts violated free speech, voting and equal protection provisions in the state constitution.

The new boundaries watered down the strength of Black voters and were intentionally drawn to benefit Republicans, his ruling said. As a result, communities with a common interest like Wyandotte County and Lawrence have an unequal chance of electing people who represent their interests.

“The State has created classes of favored and disfavored voters, allowing voters of one party to elect their candidates of choice while denying that same right to voters of another,” Klapper wrote in the ruling. “The Kansas Constitution, which recognizes citizens’ right to political equality, stands as a bulwark against such legislative misconduct.”

The state’s appeal of that ruling means the Supreme court will decide how far the Legislature can go.

Attorneys argued on several points during the two-and-a-half-hour session today.

Laue pointed out that the lower court ruling was by a partisan-elected judge and is the first time in Kansas history that a district judge has invalidated a redistricting plan.

He said the arguments that the lines intentionally watered down the political power of certain voters were refuted by the legislative record showing lawmakers intended to group the University of Kansas and Kansas State University as well as military bases together because of their common interests. The splitting was made necessary by population growth, he said.

Expert testimony from the lower court trial is “largely of no value to the court’s decision,” Laue said. He mentioned testimony about the placement of Interstate 70 being located based on racism when it was built 60 years ago. “As a legal matter, racism in 1956 doesn’t translate to racism in 2022,” he said.

“If allowed to stand, the district court’s ruling will have untold future consequences,” he said. “Having now entered the fray, Kansas courts are all but certain to be pulled into political battles in every redistricting to come.”

Plaintiffs argued that the proposed districts manipulate the map to favor Republicans by splitting up communities of where Democrats had the numbers to be able to elect one of their own, and by weakening the voice of Black voters.

Supreme Court justices asked questions throughout. Justice Dan Biles asked repeatedly why Johnson County was kept in one piece when Wyandotte was separated. He noted evidence from the lower court saying a Johnson County delegation had asked to keep the county in one district because it is “the economic engine” of the state.

“Apparently there are benefits to being kept intact and those are benefits that are denied to Wyandotte County, and to Douglas County,” Biles said. “The question is why.”

Stephen McAllister, a lawyer representing aggrieved voters in Lawrence, said weakening the voice of traditionally Democratic areas will create a “more subtle evil” in that voters in those areas, who have been politically engaged and active, will become discouraged and opt out of civil discourse.

Justice Caleb Stegall often asked about whether the appeal of the maps was seeking some type of “proportionality,” giving voters in every district an equal chance of electing someone they agree with.

For example, someone voting for the Green or Libertarian party could make a similar claim, he said. “Are their constitutional rights just being violated all the time because they can never elect their candidate of choice?”

McAllister answered that the problem was in the targeting of certain voter groups. Libertarians, Green voters and politically unaffiliated voters had not been targeted to lose a seat in the maps, he said.

McAllister said he is asking the court to throw out the map but not necessarily for the court to draw a new one.

The court was shy one justice Monday. Justice Eric Rosen was isolating after testing positive for Covid-19. Chief Justice Marla Luckert announced he would be listening to arguments and would participate in the decision.

The court took the case under advisement.

Roxie Hammill is a freelance journalist in Kansas City. Contact her at roxieham@gmail.com.
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