A Wyandotte County judge on Monday threw out the state’s new congressional boundaries, saying that they were rigged in a way to benefit Republicans while “systemically” diluting the strength of Democratic and minority voters.
District Judge Bill Klapper ruled in a 209-page opinion that the new map – known as Ad Astra 2 – violates multiple sections of the Kansas Constitution because of partisan and racial gerrymandering.
Klapper, elected to the bench as a Democrat, ordered the Legislature to draw a new map. The attorney general immediately appealed to the state Supreme Court.
“The court has no difficulty finding, as a factual matter, that Ad Astra 2 is an intentional, effective pro-Republican gerrymander that systemically dilutes the votes of Democratic Kansans,” Klapper ruled.
“Ad Astra 2 is also unconstitutional on the independent and distinct ground that it dilutes minority votes in violation of the Kansas Constitution’s equal rights and political power
clauses,” Klapper ruled.
“The court concludes that Ad Astra 2 intentionally and effectively dilutes minority votes,” Klapper wrote.
“Intentional racial vote dilution violates the Kansas Constitution’s guarantee of equal rights and equal benefit of political power,” Klapper ruled.
Republican House leadership – Speaker Ron Ryckman Jr., Majority Leader Dan Hawkins, and Speaker Pro Tem Blaine Finch – issued a statement criticizing the ruling.
“It is not surprising that a partisan Democrat judge sided with Laura Kelly’s east coast special interest groups to usurp lawfully enacted maps approved by a super majority of the people’s representatives,” they said of the governor.
Klapper’s ruling hinged in part on a state Supreme Court ruling from 2019 that found the state’s constitution protects the right to an abortion because it provides broader rights than the federal constitution.
Plaintiff voters challenged the map drawn by Republicans in the Legislature, claiming that it gerrymandered the state in the GOP’s favor by splitting Wyandotte and Douglas counties, the state’s two Democratic strongholds with large concentrations of minority voters.
The new plan slices 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.
It also moves the city of Lawrence out of the 2nd District into the largely agricultural-centered 1st Congressional District that extends to the Colorado border.
The plan moves 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 makes 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.
The new 2nd District, for instance, now favors Republicans with the average GOP statewide candidate receiving average of 55% of the vote from 2012-2020.
It increases to 56% of the vote with the new plan.
“The court also holds that partisan gerrymandering — the drawing of district lines to
dilute the votes of those likely to vote for a disfavored party — deprives voters of substantially equal voting power,” Klapper ruled.
“This is because voters cannot be said to enjoy an equal vote when they live in
districts that the state has drawn in such a manner that negates voters’ representational influence,” he ruled.
Klapper said the new map treated minority votes significantly less favorably than white voters.
“Minority voters’ preference for Democratic candidates does not mean that the redistricting plan’s treatment of Democratic voters is synonymous with its treatment of minority voters,” he ruled.
On the contrary, Klapper pointed to expert testimony from the plaintiffs that the new map treated minority Democrats even less favorably than it treated white Democrats.
The judge also criticized the process for how the map was drawn, calling it “hurried and publicly opaque.”
“The process of enacting Ad Astra 2 was characterized by multiple departures from the ordinary legislative process,” Klapper wrote.
“The Legislature conducted a listening tour, but announced it only a week in advance, completed 14 stops within just five days, and held ten of the fourteen sessions during working hours,” Klapper noted.
The tour also took place before the release of U.S. census data, “depriving the public of a full opportunity to provide meaningful input and adding to the appearance that the tour was merely a box-checking exercise.”
Klapper took notice of testimony from Democratic state Sen. Ethan Corson, who testified that Republican lawmakers spent time looking down at their phones during the hearings.
“In what Sen. Corson described as ‘one of the more disrespectful acts [he had] ever seen from elected officials toward members of the public,’ Republican Committee members routinely ‘play[ed] on their phones right in front of’ individuals offering testimony.”
The redistricting case represents the first time that new election boundaries have been challenged under the Kansas Constitution.
The attorneys for the state had argued that there was no standard in Kansas law that limits or provides a guide for redistricting.
Klapper said he turned to similar cases from Supreme Courts in other states to use as a model to guide him in the Kansas case.
“Other states’ supreme courts have successfully adjudicated partisan gerrymandering claims under their state constitutions, providing a model for this Court.
“Kansas courts routinely look to the jurisprudence of sister states for guidance in interpreting constitutional language,” he wrote.
“Doing so in this case buttresses the court’s conclusion that partisan gerrymandering claims are justiciable…,” he ruled,
“The supreme courts of Florida, North Carolina, Ohio, and Pennsylvania have all applied their state constitutions to protect against partisan gerrymandering in congressional and legislative redistricting.”
Klapper’s opinion relies to an extent on the state Supreme Court’s 2019 landmark decision that found that the state constitution protects the right to an abortion.
In the abortion 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 in the redistrict cased contended 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.
Klapper cites the abortion case – known as Hodes – five times in this ruling, noting that that the state constitution provides greater rights than the federal constitution.
“The Kansas Supreme Court has recognized that the Kansas Bill of Rights secures
natural rights that go beyond what is guaranteed by the United States Constitution,” Klapper ruled.
Sharon Brett, legal director for the American Civil Liberties Union of Kansas, said the Hodes decision clearly played a role in Klapper’s decision.
“The Hodes case is about abortion access, but it also stands for a broader principle that the Kansas Constitution is it’s own independent document from the federal constitution,” Brett said.
“The rights guaranteed by the Kansas Constitution some times overlap with the federal constitution but sometimes go beyond it,” she said.
“If the Kansas Supreme Court sort of has that position or view of the Kansas Constitution as a document, that is pretty important and I think is something Judge Klapper relied on obviously and something we relied on in our case as well.”