After the Kansas Supreme Court upheld a Republican-drawn congressional map that divides racially diverse Wyandotte County, Kansas State Board of Education member Melanie Haas took to Twitter to express her anger.
The court, wrote the Democrat who represents part of Johnson and Wyandotte counties, had “chosen to endorse racist and classist discrimination, along with gaslighting voters.”
For years, the Kansas Supreme Court has repeatedly left Republicans enraged with its decisions. The seven-member court has found the state constitution protects the right to an abortion, upheld pandemic limits on religious gatherings and required the GOP-controlled Legislature to pump hundreds of millions more into public education.
But this week it’s Democrats who have been venting.
In a decision released Wednesday, the court ruled against a legal challenge to the map, which will make re-election more difficult for U.S. Rep. Sharice Davids, the state’s sole Democrat in Congress. The map also moves liberal-leaning Lawrence into the heavily Republican 1st District, which stretches to the Colorado border.
It came after a lower court found the map was politically gerrymandered and diluted the voting power of minorities in violation of the Kansas Constitution’s guarantees of free speech, equal protection and the right to vote.
The two-page Kansas Supreme Court opinion – a full decision will come later – immediately sparked rare fury with the court among Democrats, who had hoped the Kansas Supreme Court would place limits on gerrymandering. Kansas Democrats have few options to fight maps they say are unfair: federal courts are refusing to block politically gerrymandered maps and Republicans hold a veto-proof majority in the Legislature.
“What that really says is that the majority party can do whatever they really want to do and where we thought the courts would step in to say, ‘No, you can’t,’” said state Rep. Barbara Ballard, a Lawrence Democrat.
All but one of the justices will appear on the November ballot if they choose to stand for retention. A ruling against the map, which would have been unprecedented in Kansas history, would have almost certainly triggered a wave of Republican anger and fueled calls to non-retain some of the justices.
But the frustration of Democrats is unlikely to lead to a sustained effort to oust members of the court, even though Republicans have repeatedly tried in the past to kick off justices who angered them.
Democrats have already successfully installed a majority of the justices. Kelly and Democratic Gov. Kathleen Sebelius have together named five of the court’s seven members, with Kelly alone naming three because of retirements on the court.
Sebelius named Justices Dan Biles and Eric Rosen, the only justice not on the ballot this year. He will go before voters in 2026.
Kelly named Justices Evelyn Wilson, K.J. Wall, Jr., and Melissa Taylor Standridge. Under Kansas law, after justices join the court they go before voters during the next general election. If they are retained, they then serve terms of six years.
Any justice who is non-retained this November would officially leave the court in January 2023. It’s not clear whether Democrats would risk giving Republican Derek Schmidt, the current state attorney general whose office defended the map in court, an immediate pick on the court if Kelly loses re-election or if a lame-duck governor would be able to choose a nominee.
The only two Republican-appointed justices are Chief Justice Marla Luckert, chosen by Gov. Bill Graves, and Justice Caleb Stegall, a former chief counsel to Gov. Sam Brownback who Brownback selected in 2014 and who wrote the majority opinion in Wednesday’s decision.
Kansas uses a merit-based selection system in which a nominating commission evaluates candidates and sends three nominees to the governor. Whoever the governor picks joins the court. The Legislature, to the continued chagrin of Republicans, has no power to block the governor’s selection, leading to unsuccessful efforts to advance a constitutional amendment that would require the state Senate to confirm nominees.
Voters have never ousted a justice
In the past, Democrats have also been vocal in defending the Kansas Supreme Court against attacks by Republicans. They have also opposed past campaigns to non-retain justices. A reversal now would invite charges of hypocrisy.
“Let’s assume that the court does in due course hand down a decision and let’s assume that decision may not be on the basis of the best legal reasoning and/or doesn’t reach the conclusion that Democrats like me would have liked to have seen,” said state Rep. John Carmichael, a Wichita Democrat and an attorney. “I think it is very unlikely that you will hear Rep. Carmichael calling for the recall of justices or a justice over a decision in a single case.”
Carmichael said the independence and autonomy of the court is more important than its decision in any particular case.
Campaigns to non-retain justices have never succeeded in Kansas. The last significant effort came in 2016, driven by Republicans and anti-abortion activists upset with decisions on abortion, the death penalty and school funding. No justice that year received less than 55% of the vote.
However, some elections have been close. In 2014, Justice Lee Johnson, who has since retired, won retention with only 52.6% of the vote. Justice Eric Rosen, the only justice not up for retention this year, received just 52.7% of the vote in 2014.
Republicans were upset that year by a Kansas Supreme Court decision vacating the death sentences of Jonathan and Reginald Carr, brothers convicted of murder. The U.S. Supreme Court later overturned the state Supreme Court decision.
“Maybe some of those members of the court – I don’t know who’s up for retention votes this cycle – maybe they’re saying, ‘Maybe we should throw the Republicans in the state a bone in order to give ourselves a fighting chance of not losing our retention vote,’” said state Rep. Steve Huebert, a Valley Center Republican who was a member of the House Redistricting Committee.
“That’s me being cynical, but the reality is the law was very clear,” Huebert said. “Our constitution’s very clear.”
Democrats have already signaled they plan to channel their frustrations into changing the redistricting process itself, rather than targeting Stegall.
“Because the Court ruled the Kansas Constitution was not violated, this decision makes clear it’s time for an amendment that clarifies gerrymandering is unconstitutional and prohibited in the state,” House Minority Leader Tom Sawyer, a Wichita Democrat, said in a statement.
Kelly this week also repeated her call for a non-partisan redistricting commission. The governor, whose selection of three justices is a significant legacy of her first term, said she was disappointed in the court’s decision but respected it.
Any changes to the redistricting process face long odds after the Kansas Supreme Court decision. Republicans have received a clear signal that they have a very free hand to draw maps as they see fit under state law and are unlikely to entertain any overhauls.
Some Democrats acknowledge they don’t anticipate GOP support for changes anytime soon.
“After this, I don’t see any redistricting reform on the horizon,” state Rep. Kathy Wolfe Moore, a Kansas City Democrat, said. “And why would they at this point?”
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(The Star’s Katie Bernard contributed reporting.)
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