Kansas legislative leaders argue district court erred by ruling congressional map unconstitutional

Plaintiffs denounce attempt by GOP lawmakers to distort ‘legislative privilege’

By: - May 10, 2022 9:39 am
Sen. Tom Holland, a Democrat from Baldwin City, disappointed with the redistricting process submitted a brief that included a photograph from an Overland Park public hearing on the maps that shows three GOP senators engaged with their cellphones rather than being attentive. (Kansas Reflector screen capture from brief filed with Kansas Supreme Court)

Sen. Tom Holland, a Democrat from Baldwin City, disappointed with the redistricting process submitted a brief that included a photograph from an Overland Park public hearing on the maps that shows three GOP senators engaged with their cellphones rather than being attentive. (Kansas Reflector screen capture from brief filed with Kansas Supreme Court)

TOPEKA — The Republican-controlled Legislative Coordinating Council’s legal brief to the Kansas Supreme Court rejects a lower court decision that the 2022 congressional map was unconstitutional, arguing that judge’s ruling amounted to partisan overreach and parroted unproven claims by plaintiffs.

The three consolidated lawsuits to be argued on appeal May 16 before the state Supreme Court challenged the Legislature’s decision to divide Wyandotte County between two congressional districts and transfer Lawrence from the 2nd District in eastern Kansas to the rural 1st District.

The state is appealing the district court decision that said the congressional map wasn’t compliant with the state’s Bill of Rights and the Kansas Constitution. Legislative leaders on the LCC, attempting to bolster the argument for a reversal, asked the Supreme Court to accept their amicus brief explaining why the map was valid.

“Regardless of the standard actually adopted by the district court, it has overreached,” attorney Todd Graves said in the brief on behalf of Secretary of State Scott Schwab and the Wyandotte and Douglas county election clerks. “The court simply adopted as its own the intensely partisan content, rhetoric and tone of the plaintiffs. The court also made a series accusations of malfeasance against legislators without any evidence.”

During the trial, Democratic legislators said House and Senate hearings last year on redistricting were a sham because Republicans at times appeared indifferent to public input. For example, there is a widely circulated photograph of several GOP lawmakers staring down at their cellphones during a joint House and Senate redistricting forum in Overland Park.

Graves’ motion said the Supreme Court ought to be “troubled” by the ease with which the district court judge adopted claims of malfeasance by legislators involved in crafting the congressional map. He also said the district court had no authority to enact limits on political latitude granted state legislators by the U.S. Constitution in drawing election maps.

The plaintiffs’ lawyers said it wouldn’t be fair for House and Senate members on the LCC to rely on “legislative privilege” to avoid testifying under oath during the trial in Wyandotte County District Court, but they have the  Supreme Court accept the LCC’s brief on appeal of the district court decision issued by Judge Bill Klapper.

Sharon Brett, an attorney with the ACLU of Kansas, joined with other lawyers representing plaintiffs in asking the Supreme Court to reject the LCC’s brief or at least disregard factual assertions in the document. In a filing Monday, she criticized “inappropriate gamesmanship” of LCC members.

“The council’s brief is therefore an attempted end-run around the legislative privilege these leaders previously claimed, introducing evidence not in the record and rehashing purported justifications for the congressional redistricting map,” the plaintiffs’ joint response said. “It’s acceptance would inappropriately allow these leaders to invoke their legislative privilege as both a sword and a shield.”

The legal dispute centers on whether House Speaker Ron Ryckman and Senate President Ty Masterson and their Republican colleagues engaged in gerrymandering to diminish the political influence of non-GOP residents of Douglas and Wyandotte counties while working to fracture Democratic-leaning communities of interest and disenfranchise minority voters.

The GOP’s objective with new boundaries of the state’s four U.S. House seats with the “Ad Astra 2” map was to give presumptive 3rd District GOP nominee Amanda Adkins a better shot at defeating U.S. Rep. Sharice Davids, a two-term Democrat.

“Partisan gerrymandering, as appears in Ad Astra 2, violates the equal protections enshrined in the Kansas Constitution, and should be rejected by this court,” said Teresa Woody, of the Kansas Appleseed Center for Law and Justice, in a motion requesting the Supreme Court affirm the lower court’s ruling on constitutionality.

She said gerrymandered districts leading to preordained election results discouraged voter education, participation and turnout due to a belief that some votes didn’t matter.

However, the brief submitted to the Supreme Court by Graves and other attorneys representing the state suggested the district court was on a path to control congressional mapping in Kansas.

“If anything, it is for the voters to carefully consider and pass their own procedural change to the constitution to limit gerrymandering — not for the state courts to create new substantive rights on the fly,” Graves said.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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