Congressional map case: Where abortion and redistricting intersect

0
1529

There’s not much in common between abortion and drawing election boundaries.

Unless it’s Kansas and there’s a court ruling on abortion that could influence the outcome of whether the state’s new election districts for Congress are found to be constitutional.

For the first time, Kansas congressional boundaries are being challenged under the state’s constitution, which three years ago was found to protect the right to an abortion.

But there’s a view that the state constitution doesn’t stop there and the ruling from the 2019 abortion case might extend to other rights that aren’t necessarily enumerated explicitly in the constitution but may be still protected because of that ruling.

The Hodes case from 2019 is weaved throughout the pleadings challenging the new congressional map, which plaintiff voters say was drawn in a way to help Republicans at the expense of Democratic and minority voters.

The map splits Wyandotte County in half, moving more than 100,000 voters – many of them minorities – into the 2nd District. It also moved the college of town of Lawrence into the largely rural 1st District.

The case is now in the hands of Wyandotte County District Judge Bill Clapper and is ultimately headed to the Supreme Court, where three of the justices who ruled in favor of Hodes are still on the court.

While the state has argued that there is no constitutional standard for partisan or racial gerrymandering, the abortion case and its broad view of the Kansas constitution’s Bill of Rights looms in the backdrop as the case unfolds in the courtroom.

“The critical issue here is whether the Kansas Constitution provides greater protection against gerrymandering — particularly political gerrymandering — than the United States Constitution does,” University of Kansas law professor Richard Levy said.

“State constitutions may provide greater protections than the federal constitution,” said Levy, who specializes in constitutional law.

Richard Levy

“That was a key feature of Hodes, which essentially declared that the Kansas Supreme Court would interpret the state constitution’s individual rights provisions independently of their federal counterparts,” he said.

While abortion and redistricting are different matters, he said, “the decision whether to provide greater protection for rights — here voting rights — than the federal constitution is a similar one.”

In the Hodes case, the court found that the section guaranteeing equal rights was broader than the U.S. Constitution and that the framers “intended these rights to be judicially protected against governmental action that does not meet constitutional standards.”

Further, the plaintiffs contend that Section 2 of the Bill of Rights — “all political power is inherent in the people” — provides stronger protections for political equality than the U.S. Constitution and as a result, political gerrymandering should be struck down.

It is not necessarily unexpected to see the Hodes case surface in some other settings besides abortion rights.

In a paper two years ago, Levy contended that the Hodes case had “significant implications not only for abortion rights but also for many other constitutional rights.”

“The Kansas Supreme Court decision in Hodes & Nauser has profound implications for constitutional rights in Kansas,” Levy wrote in 2020.

“The decision is a declaration of independence from the United States Supreme Court’s current constitutional rights jurisprudence, not only with respect to abortion rights, but also with respect to a potentially broad array of other rights,” he wrote.

Indeed, Levy noted that Hodes already figured in a 2019 case in which the state Supreme Court decision struck down the state’s cap on noneconomic damages in personal injury lawsuits, saying it violated the state constitution.

The court, he said, relied on Hodes to provide “expanded protection for the right to a jury trial, overruling recent precedent to the contrary.”

Following the Hodes decision, attorneys representing men on Kansas death row started using the abortion case to argue that their clients were protected under state constitutional guarantees of “life, liberty and the pursuit of happiness” in the Bill of Rights.

The Associated Press reported in 2019 that attorneys for five of the 10 men on death row in Kansas argued that their clients could not be put to death because it violated their “inalienable” right to life.

A conservative Kansas lawyer worries about what happens if ultimately the Kansas Supreme Court rules against the maps based on precedent in Hodes.

Ryan Kriegshauser

“If Kansas courts unwisely decide to wander into the deeply political thicket of redistricting instead of refraining from reaching political questions, that path runs through Hodes and ends with the death of legislative redistricting as we know it, in Kansas, forever,” said conservative lawyer Ryan Kriegshauser.

“This argument just goes to show the dangers lurking around every corner when courts find unenumerated rights at the expense of enumerated procedures and prohibitions because it opens the door to essentially standardless judicial usurpation of the democratic process,” said Kriegshauser, who represented potential witnesses in the case.

While attorneys for the voters challenging the new congressional map say Hodes isn’t a lynchpin, they agreed it plays an important role.

“I wouldn’t say it’s what the case is hung on,” said Sharon Brett, legal director for the American Civil Liberties Union of Kansas.

“I would say that decision made clear that rights enshrined in the Kansas constitution are actually broader than the rights that are in the federal constitution,” Brett said.

Sharon Brett

“Even if something may not be illegal or unconstitutional under the federal constitution, it could still very well be unconstitutional under the state constitution, which is what the Hodes decision decided in the context of reproductive rights,” she said.

The case is relevant in the lawsuit over the congressional districts, she said, because it relates to the legal standards the plaintiff’s are advancing for how the court could interpret dilution of voting minority strength and political gerrymandering.

“The Hodes decision is a very important decision from our Supreme Court that is one of the most recent and one of the most expressive decisions about the right guaranteed under the Kansas constitution as compared to the federal constitution,” Brett said.

The state has argued that there is no “manageable standard” by which Kansas courts can decide political gerrymandering claims.

“One reason for this is that claims of political gerrymandering are necessarily based on predictions about how voters will act in future elections. And those predictions are difficult to make,” the attorney general argued in his brief.

Mark Johnson, one of the lawyers challenging the maps, said technically there is not a relationship between the abortion and redistricting cases.

But he notes that in the Hodes case, there wasn’t anything specific that guaranteed the right to an abortion either.

“What the Supreme Court did is take various provisions of the constitution and sort of put them together and said, ‘It sure sounds to us like there is a right to privacy, a right to choice that is implicit in the constitution,'” he said.

The plaintiffs’ argument against partisan gerrymandering is similar, he said.

“You point to four or five different provisions of the Kansas state constitution, and we think — and courts in many other states have also thought — that even if their constitution doesn’t specifically in so many words prohibit partisan gerrymandering, there are a number of provisions that guarantee to Kansans the right to free and fair elections,” he said.

Jeffrey Jackson

Washburn University law school professor Jeffrey Jackson noted the state Supreme Court found in Hodes that the state constitution protects “natural rights” that may be distinct and broader than the federal constitution.

“The question is whether the right to a meaningful vote and equal participation in government are among those rights, and whether this encompasses partisan gerrymandering,” he said.

“Because the federal constitution guarantees such rights, I’d say it’s a pretty decent argument,” Jackson said.

The attorney general argues that there is nothing in the Kansas Constitution that protects voters from gerrymandering.

While other courts in other states may have recognized gerrymandering claims, they have done so based on the unique language in the state constitution that does not appear in the Kansas Constitution, the attorney general argues in its brief.

The state constitution says that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” and “all political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit.”

To the extent that section guarantees the right to equal protection, it’s given “much the same effect” as the 14th Amendment in the U.S. Constitution, the attorney general argued.

“Plaintiffs ask this court — for the first time in Kansas history — to hold that the Legislature’s redrawing of federal congressional maps violates the Kansas Constitution,” the attorney general argued.

“There is good reason this lawsuit finds no support in precedent: Neither the U.S. Constitution nor any exercise of the state’s lawmaking power, including the Kansas Constitution, authorizes state courts to invalidate federal congressional maps—and certainly not under the legal theories paintiffs advance.”