TOPEKA, Kan. — The Kansas Supreme Court had sharp questions on Monday for both sides in a historic fight over whether the state constitution prohibits gerrymandering that will decide the future of the Kansas City-area congressional district held by Democrat Sharice Davids.
The justices have never before ruled on a challenge to a congressional map, but a group of voters alleges Republican-drawn district boundaries passed earlier this year dilute the power of minority voters and violate guarantees of free speech, equal protection and the right to vote in the state constitution.
During arguments, the justices appeared to search for a standard to use to evaluate whether the map is unconstitutional. The state constitution doesn’t include any specific provisions about the once-a-decade redrawing of congressional districts following the U.S. Census.
“It just seems to me like this is government action targeting other Kansans for how they’re treated in this map redesign,” said Justice Dan Biles said, who was appointed by Democratic Gov. Kathleeen Sebelius and was one of the most outspoken justices on Monday.
The map divides Wyandotte County between two districts for the first time since the early 1980s, which would cleave apart the most racially and ethnically diverse county in the state — as well as one of the state’s largest concentrations of Democrats. This change could weaken Davids’ electoral prospects in the 3rd District, which encompasses the Kansas side of the Kansas City metro.
The map also moved liberal-leaning Lawrence from the sometimes-competitive 2nd District into the heavily Republican 1st District. The change would put the University of Kansas campus in the same districts as western Kansas towns along the Colorado border.
Justice Caleb Stegall, appointed by Republican Gov. Sam Brownback, questioned an attorney for the ACLU of Kansas who was representing the voters whether Democrats losing political power is unacceptable, given that third parties lose elections all the time.
“At the end of the day, a person is a member of a party that doesn’t have enough votes… are their constitutional rights just being violated all the time because they can never elect their candidate of choice?” Stegall said.
Sharon Brett, legal director of the ACLU of Kansas, said lawmakers “set out with the intention of drawing an entire political party out of power.”
Responding to Stegall’s comments, Stephen McAllister, an attorney representing a group of Lawrence voters, said lawmakers hadn’t targeted third-party voters in the same way.
“You’re looking for targeting of groups who were in a position where they had a meaningful opportunity to participate and that’s being taken away,” McAllister said.
A majority of the seven-member Kansas Supreme Court was appointed by Democratic governors. Of the justices who spoke on Monday, Stegall appeared the most skeptical of ruling against the map, while Biles appeared ready to rule against it. The others gave less indication of which way they’re leaning.
“How is partisan gerrymandering a legitimate government function?” Biles asked bluntly.
Kansas Solicitor General Brant Laue, who along with Stegall both served as chief counsel in the Brownback administration, said the redistricting process is political by its very nature– a decision left to lawmakers. Politics is simply part of the process and can’t be “distilled” out, he said.
“This case argues for a new exception based on political party,” Laue said, raising a slippery slope argument that if the court provides protections against political gerrymandering, other groups will be next.
“Will it be age, will it be gerrymandering based on religion?” Laue said.
3rd District race could be affected
The case reached the Kansas Supreme Court on an accelerated timeline following a speedy trial in Wyandotte County District Court. Judge Bill Klapper ruled the map diluted minority voting power and was politically gerrymandered, triggering the appeal to the state’s high court.
The court hasn’t set a deadline for an opinion, but will likely rule later this month. Candidate filing ends June 10.
In the 3rd District, Davids appears likely to face a rematch against Republican businesswoman Amanda Adkins, who also ran in 2020. Republicans in the 3rd District last week hosted a pot-luck to welcome Republicans in Miami, Franklin and Anderson counties – all largely rural areas – to the reshaped district.
Speaking to the crowd, Adkins acknowledged the exact makeup of the district remained uncertain. “I’m super hopeful you will ultimately be part of the 3rd district,” said Adkins, a former Kansas Republican Party chair.
The Adkins campaign didn’t immediately respond to a request for comment on Monday.
Davids’ campaign has fundraised off the redistricting fight. In an April message to supporters, the campaign said “our team has been committed to one thing: ensuring a free, fairly drawn democracy representative of all Kansans.”
On Monday, Davids’ campaign spokesperson Ellie Turner said Davids “is focused on doing the job she was elected to do in Congress and will continue to advocate for every Kansan’s voice to be heard and heeded throughout the redistricting process.”
Kansas Attorney General Derek Schmidt, a Republican whose office is defending the map, told reporters he was hopeful the court would reject the case and refrain from setting groundbreaking new precedent in the state.
“There’s a reason that this is the first time in Kansas history that plaintiffs challenging a federal map have come to state court and it’s because they know they would have lost in federal court,” said Schmidt, who is also the likely GOP nominee for governor.
“What my friend on the other side argued was essentially that there ought to be no political considerations or partisan considerations in redistricting … and that’s just a laughable position,” Schmidt said.
Brett, however, said the case left key voting rights at stake.
“What we’re talking about here are fundamental rights of the Kansas constitution,” Brett said. “The ability of the Legislature to run roughshod over those rights in service of partisan gains is really the question.”
State map also challenged
The justices on Monday also considered a challenge to the state legislative maps. Under the state constitution, the court automatically reviews state House and Senate districts. Sen. Tom Holland, a Baldwin City Democrat, is arguing the Senate map is unconstitutional after lawmakers drew Holland into a district along with Republican Sen. Beverly Gossage.
Mark Johnson, an attorney representing Holland, argued that justices must consider the “secretive” process that seemed to ignore public input employed by lawmakers when considering map and that guidelines set early in the Legislative session to seek compact districts and maintain communities of interest should be tantamount in determining the validity of a legislative map.
“The result was predestined,” Johnson said.
Biles appeared skeptical of Johnson’s argument. While a non-transparent process, Biles said, could result in a invalid map there would need to be clear results proving harm to voters.
“We’re just the court. 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,” Biles said. “I don’t see how that translates to anything we can do from our spot.”
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