Kansas Attorney General argues fairness of congressional map is off limits for state court

By: - May 3, 2022 2:59 pm
An organization filed an ethics complaint against Kansas Attorney General Derek Schmidt, accusing him of misconduct by participating in a 2020 lawsuit questioning election procedures in four swing states that helped President Joe Biden defeat former President Donald Trump. This 22-foot marble sculpture dominates the lobby of the Kansas Judicial Center in Topeka. (Sherman Smith/Kansas Reflector)

Justice is represented in a 22-foot marble sculpture at the Kansas Judicial Center in Topeka. The Kansas Supreme Court will hear in-person arguments about redistricting maps on May 16. (Sherman Smith/Kansas Reflector)

TOPEKA — Attorney General Derek Schmidt’s office says the Kansas Supreme Court has no business evaluating the fairness of redrawn congressional districts, despite a district court’s ruling that the map is heavily biased toward Republicans and dilutes minority votes.

In a written argument filed Monday, Schmidt’s office argues the state court system doesn’t have a role in evaluating boundaries for federal elections; the redistricting process is inherently political, making the subject off limits to judges; and the lower court was wrong in determining the map was gerrymandered.

Brant Laue, solicitor general, authored the argument on behalf of Schmidt’s office.

“The district court determined that it was the arbiter of political fairness in redistricting,” Laue wrote. “The district court wielded this extraordinary power under the auspices of ‘democracy.’ But make no mistake: The district court’s decision is a loss for democracy, not a win.”

The Kansas Supreme Court will hear in-person arguments on the issue May 16, along with arguments over new maps for state Senate and House districts.

The Kansas Constitution tasks the Legislature with redistricting based on Census results every 10 years. The Republican supermajority approved the new maps despite objections from Democrats and voting rights groups. They said Republicans abandoned typical guidelines for drawing compact districts, keeping communities of interest together and preserving existing districts. Republicans refused to say who drew the maps.

The new congressional map divides the Kansas City metro area in an obvious attempt to make it more difficult for the state’s only Democrat in Congress, U.S. Rep. Sharice Davids, to win reelection. The map moves the heavily diverse northern part of Wyandotte County from the 3rd District to the 2nd District, then carves Democrat-leaning Lawrence out of Douglas County and places it into the heavily conservative 1st District, which extends to the Colorado border.

A map produced by Republicans in the House and Senate would divide the Kansas City metro area and place Lawrence in the 1st District, which stretches to the Colorado border. (Submitted)

Three coalitions of voting rights groups and attorneys filed lawsuits on behalf of Wyandotte County and Lawrence residents. Those lawsuits were consolidated into a single trial.

Wyandotte County District Judge Bill Klapper’s unusual ruling opined on the meaning of truth and the strength of Kansans, quoted from a French philosopher, the band Kansas, the buddha and the Gettysburg Address, included personal stories about his father stopping for stranded motorists and his uncle’s funeral, described attorneys as “paid advocates,” and encouraged Kansans to choose wisely when they vote.

Klapper, who was appointed to his position by Republican Gov. Sam Brownback in 2013, determined the congressional map intentionally diluted minority votes and was designed to benefit Republicans.

“This court suggests most Kansans would be appalled to know how the contest has been artificially engineered to give one segment of the political apparatus an unfair and unearned advantage,” Klapper wrote.

Klapper blocked the state from conducting an election without producing a satisfactory map. Schmidt immediately appealed the decision to the Kansas Supreme Court, a move that was expected regardless of how the district court ruled.

Laue argued in the Monday filing that the democratic process, in which elected representatives draw congressional districts, was erased by a single judge with the stroke of a pen.

“The Legislature, not the state judiciary, is designed and equipped to make the political determinations that cannot be avoided when drawing district lines,” Laue wrote. “The state judiciary should not substitute its judgment for that of the Legislature.”

Kansas Fair Maps, a coalition that includes the American Civil Liberties Union of Kansas, the League of Women Voters of Kansas and the Kansas African American Affairs Commission, issued a statement Monday urging lawmakers to return to the Statehouse immediately to draw a new map.

The Legislature is scheduled to return May 23.

“How many courts need to say what we already know — that this map is unconstitutional — before we get to work and do the right thing for Kansans?” said Martha Pint, co-president of the League of Women Voters of Kansas. “The Legislature needs to stop playing partisan games and do the job we elected them to do. Get back to Topeka and draw fair maps so our candidates and voters know where they stand.”

Connie Brown Collins, a Wyandotte County resident, says during a Jan. 24, 2022, news conference at the Statehouse in Topeka that lawmakers awakened a sleeping lion with their proposal to divide the Kansas City metro area between congressional districts. (Sherman Smith/Kansas Reflector)

Connie Brown Collins of the Voter Rights Network of Wyandotte County, which is part of Kansas Fair Maps, said the racial gerrymandering in the congressional map “is a slap in the face” to residents of Wyandotte County.

“We feel vindicated by Judge Klapper’s ruling and are hopeful that the Supreme Court agrees that this map is unconstitutional,” Collins said. “People of Kansas City, and especially people of color whose votes were in jeopardy under this map, deserve a new map that keeps our city together.”

New maps for 165 districts in the Legislature are automatically reviewed by the Kansas Supreme Court. Kansans can express views on the validity of those maps by submitting a written statement to the court by May 9.

Those statements can be emailed to [email protected] or mailed to Clerk of the Appellate Courts, Kansas Judicial Center, 301 SW 10th Ave., Room 107, Topeka, KS 66612.

The court said statements should include:

  • A title line that states, “View of interested person in case number 125,083.”
  • The name of the person or entity submitting a written statement.
  • A sentence that makes clear whether the statement is about state senatorial districts, state representative districts, or both.
  • The reason for the person’s or entity’s interest in the maps, an impact statement, or any data the court should consider.

Court records show attorney Mark Johnson has submitted an objection on behalf of Sen. Tom Holland, D-Baldwin City. The new Senate map effectively erases Holland’s district, Johnson argued, and moves him into the district represented by Sen. Beverly Gossage, R-Eudora.

Johnson argued the change was politically motivated and secretly crafted.

“There was never a transparent, open, democratic, populist, welcome-the-input-of the-people process,” Johnson wrote. “Any such notion is a fantasy.”

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Sherman Smith
Sherman Smith

Sherman Smith is the editor in chief of Kansas Reflector. He writes about things that powerful people don't want you to know. A two-time Kansas Press Association journalist of the year, his award-winning reporting includes stories about education, technology, foster care, voting, COVID-19, sex abuse, and access to reproductive health care. Before founding Kansas Reflector in 2020, he spent 16 years at the Topeka Capital-Journal. He graduated from Emporia State University in 2004, back when the school still valued English and journalism. He was raised in the country at the end of a dead end road in Lyon County.