The Kansas Supreme Court upheld the state’s new congressional districts, finding that political partisanship could be used in drawing new election boundaries and that race was not a driving force in creating the new map.
In an opinion released weeks after the decision was made, the court upheld the maps on a 4-3 vote with Justices Dan Biles, Eric Rosen and Melissa Standridge dissenting. All three were appointed by Democratic governors.
It was the first time the Kansas Supreme Court was asked to decide whether state law prohibits political gerrymandering.
The 105-page opinion, released on Tuesday, for the first time gives insight into why the court agreed to uphold the map, which was challenged because the plaintiffs said it empowered Republicans at the expense of minority voters.
However, the court’s majority found that there was nothing in Kansas law that barred the Legislature from using partisanship to create the new election boundaries and that the plaintiffs failed to prove that race was a predominant factor in how they were drawn.
The court found that the district court decision was replete with errors in legal reasoning and at times put too much emphasis on the plaintiffs’ expert witnesses.
“The manner in which plaintiffs chose to litigate this case — and the district court’s willingness to follow them down the primrose path — has a great deal to do with our decision today,” the court ruled.
“Plaintiffs put their proverbial eggs in an uncertain and untested basket of novel state-based claims, hoping to discover that the Kansas Constitution would prove amenable.
“But the constitutional text and our longstanding historical precedent foreclose
those claims.”
In a withering dissent, Rosen accused the court’s majority of “turning a blind eye to this full-scale assault on democracy in Kansas.”
“The dominant political party in our Legislature recently reapportioned Kansas congressional districts in such a manner as to dilute — or eliminate — the voting rights of racial minorities as well as to propel this state’s national political power toward a monolithic single-party system,” Rosen wrote.
“The majority of our court today gives its stamp of approval to this assault on the democratic system and the constitutional backbone of our democracy,” he said.
The new district map has the potential effect of weakening Democratic U.S. Rep. Sharice Davids’ chances of winning reelection this fall by cutting off a slice of Kansas City, Kansas, and trading it for more rural – and Republican-leaning – areas farther to the south part of the Kansas City area.
Writing for the majority, Justice Caleb Stegall noted that there are no standards in state law that govern to what extent political considerations can be used to draw election districts.
“In the absence of express standards codified in either the Kansas Constitution or in
Kansas law constraining or limiting the Legislature’s use of partisan factors in drawing
district lines, we can discern no judicially manageable standards by which to judge a
claim that the Legislature relied too heavily on the otherwise lawful factor of partisanship
when drawing district lines,” the court ruled.
The court noted that the plaintiffs challenging the districts wanted a clear standard – that partisan gerrymandering is outright prohibited under state law and that only political neutral factors should be employed in drawing new districts.
Stegall, appointed to the court by former Gov. Sam Brownback, said state law didn’t address that question.
“A bright line prohibition is certainly a judicially manageable standard,” Stegall write.
“But this has never been the law in Kansas, and in reaching its conclusion the district court completely ignored our large body of caselaw on this subject.
“For we have regularly and repeatedly held that the Legislature is constitutionally permitted to consider partisanship when drawing district lines. And this rule is consistent with longstanding United States Supreme Court precedent,” he wrote.
The court distinguished between Kansas and other states, which have established rules or legal precedent for drawing election districts.
Stegall noted that Kansas could not follow other states such as North Carolina, where that state Supreme Court found that a congressional map violated the state constitution by unfairly favoring Republicans.
“Kansas is substantially different from states having codified a constitutional duty
to prohibit partisan gerrymandering,” Stegall wrote.
“And we likewise differ from still other states that — lacking a clear constitutional mandate— have nevertheless discerned clear standards in their case precedent.” he wrote.
Stegall ruled that the Wyandotte County district judge that upheld the map adopted the most “extreme version” of the plaintiffs’ arguments — that any consideration of partisanship in drawing election boundaries was constitutionally prohibited.
“That legal starting point is, however, demonstrably wrong,” he wrote.
The court set aside the plaintiffs’ claims that the guidelines used by the Legislature in drawing the maps should be applied in this case.
“The Legislature has never adopted the guidelines,” the court ruled.
“They certainly are not found in our constitution. As such, the guidelines are not ‘actual rules’ – which is to say they are not law.”
Stegall pointed out that one state senator struggled during his testimony at trial to described how much authority the guidelines should carry, characterizing them as “sort of a promise to the people.”
“At most, the guidelines represent a ‘promise’ made only by the House Committee on
Redistricting – the only formal committee of legislators to actually adopt them.
“And in any event, internal operating procedures of the Legislature — and the guidelines cannot even go so far as to claim this status — are not binding authority that can give rise to a legal challenge that courts can adjudicate.”
In evaluating the claim that the political power of minority voters was diluted, Stegall said the plaintiffs failed to show that race was a predominant factor.
Stegall noted that evidentiary standard for bringing a minority voter dilution claim in a redistricting case is “necessarily high.”
The new plan sliced Wyandotte County in half along Interstate 70, with the northern part of the county moved into the 2nd District while the southern part remains in the 3rd District now represented by Congresswoman Sharice Davids.
The plan moved 113,000 Wyandotte County voters – of which about 72% are minorities – out of the 3rd District into the 2nd District.
An expert for the plaintiffs testified that moving Wyandotte County minority voters into the 2nd District would relegate them to political irrelevance.
The new map makes the 3rd District less diverse, with the white population increasing to 75% compared 67.6% under the old plan.
It made the 2nd District more diverse by increasing the minority population – but at a price, University of Kansas political scientist Patrick Miller testified.
The 2nd District’s white population falls to 69.8% in the new plan from 79.1% in the old plan. However, the new 2nd District is more favorable to Republicans, he said
However, Stegall said the record shows that the plaintiffs did not ask the district court to find that the Legislature used race as the predominant factor in drawing the map.
And as a result, the district court, in turn, did not apply the standard to plaintiffs’ claim of racial gerrymandering.
“The district court expressly adopted conclusions from plaintiffs’ expert witnesses that ‘partisan intent predominated’ in the drawing of the districts,” Stegall wrote.
“The district court found that the ‘Legislature acted with discriminatory intent,’ but did so only after crafting a test that did not test for predominant intent at all.”
“The district court did not find that race was the predominant factor motivating the
Legislature’s decision to place a significant number of voters inside or outside of a
particular district,” Stegall wrote.
“We therefore conclude that on the record before us, plaintiffs have failed to satisfy their burden to meet the legal elements required for a showing of racial gerrymandering.”
The American Civil Liberties Union of Kansas ripped into the court’s decision.
It said the court’s opinion on partisan gerrymandering would “close the courthouse doors and allow the Kansas legislature to draw maps with the specific intent of drowning out the political voices of the disfavored part.”
Perhaps more alarming, the ACLU said, was the court’s legal analysis on the racial vote dilution.
It said the ruling ran contrary to a “litany of other state and federal court rulings and ignores the district court’s express findings of intentional race discrimination in the map drawing process.
“This misinterpretation of the law,” the ACLU said, “is deeply unfortunate and harmful to all voters in Kansas, but especially those in minority communities whose voices were deliberately targeted and silenced.”
