Arguments pit process vs result in Kansas Supreme Court debate over legislative maps

TOPEKA — Attorney General Derek Schmidt began proceedings Monday asserting to the Kansas Supreme Court that new boundaries for Kansas House and Senate districts violated no law. He urged them to look at the product, not the process, when determining the validity of the map.

On the other side, opposition to the map focuses on complaints about the constitutionality of modifications made to districts across the state. Election-rights advocates have pointed to communities in Wichita; Olathe; and Kansas City, Kansas, as those adversely affected. As an attorney representing a Kansas senator argued, it would also disturb Lawrence and Leavenworth communities.

It is up to the Supreme Court to review the state House and Senate maps contained in Senate Bill 563, in response to a petition filed April 25 by Schmidt. The state constitution requires the petition requesting the state’s highest court review the new boundaries within 15 days of their publication in the Kansas register, which occurred April 21.

If Schmidt, the presumptive GOP nominee for governor, has his way, the state’s highest court will approve the maps within 30 days of the filing date. 

Schmidt told the panel of seven justices during opening arguments that the court did not have a role in reviewing validity in terms of splitting communities of interest. He said there are “always somebody unhappy when the music stops and the new districts are drawn,” but that desire to draw lines differently should not be a factor in the maps’ validity.

“This is certainly not foreign, either to this court or to the Legislature,” Schmidt said. “It happens every time there is a reapportionment, and so I wouldn’t recommend that the court sort of post hoc decide the validity means something other than or beyond what its cases have pretty clearly suggested, or we’re shooting in the dark.”

Under the state constitution, the Legislature must produce updated maps for the 125 Kansas House districts, 40 Kansas Senate districts, the Kansas Board of Education and the state’s four U.S. House districts every 10 years. The bill containing the new maps was approved 83-40 in the House and 29-11 in the Senate before the governor signed it.

Looking at six similar past cases for guidance, Schmidt said the court should first look at whether the map is procedurally valid and second whether it is substantively valid, specifically if it complies with the Voting Rights Act. 

In a line of questioning by Justice Caleb Stegall, appointed by Republican Gov. Sam Brownback, on the constitutional requirement for compact districts or consideration of incumbents, Schmidt things like the nature of listening tours held and the speed with which the Legislature acted should only be considered as a general matter.

“Those are not things that this Court has ever considered procedural defects worthy of invalidating a map,” Schmidt said.

Justice Dan Biles, appointed to the court by Democratic Gov. Kathleen Sebelius, was quick to pump the breaks on marking this information as irrelevant.

“There might be mischief because it’s not compact, but it doesn’t mean it’s unconstitutional, because it’s not compact,” Biles said. “It’s just evidence of maybe something that could be unconstitutional or illegal.”

Chief Justice Marla Luckert also noted a few dramatic outliers where racial demographics seem to have changed drastically.

“The fact that they remain a steady population percentage doesn’t really answer the question of whether we’ve had that historical fracturing that is discriminating against those ethnic populations,” Luckert said. “There’s some troubling things here but what do we do given the limitations of this proceeding?”

In addition to oral arguments on state House and Senate maps, the Supreme Court is scheduled to hear an argument in the attorney general’s appeal of a Wyandotte County District Court judge’s ruling that the congressional map was unconstitutional.

Eyes on the process

Mark Johnson, a Kansas City attorney representing Sen. Tom Holland, a Baldwin City Democrat, raised concerns primarily around the changes made to Senate District 3, represented by Holland, and District 9, represented by Eudora Republican Sen. Beverly Gossage. He urged justices to focus on the process that led to the new district lines rather than simply the result.

“It is a broader question. The redrawing of these lines has resulted in no less than 4% of the state’s population of 3 million being represented by Senators they did not elect,” Johnson said. “More than 100,000 Kansans, because of the way these lines were changed by the Legislature, are now represented by senators they did not elect.”

Under the bill, Senate district lines would remain the same until 2024. 

Johnson noted the United States Supreme Court has identified several instances that might justify a deviation from ideal district populations including making districts compact, respecting municipal boundaries and avoiding contests between incumbents. 

“The problem of course here is that we don’t have we don’t have a record or report from the legislature that they took these factors into account,” Johnson said, adding that during listening tours redistricting committee members were not taking these types of concerns seriously.

He noted several pieces of written or photographic testimony submitted by the public to the Supreme Court on the tours.

But Biles questioned if there was any legal precedent for this line of thinking

“There’s no requirement in the Constitution to listen, to be nice, to even be transparent and I hate that word,” the justice said. 

“I understand your argument that says this looks really bad and we ought to look deeper on the substantive side for mischief,” Biles said. “I don’t see your argument about invalidating this bill because the procedure was wrong. I don’t see any legal standard to apply other than what are the steps to make a bill?”

Justice K.J. Wall, appointed to the court by Gov. Laura Kelly, worried if isolating districts and pulling at the thread of the logic behind them might cause a domino effect.

“When you start pulling — maybe like a magician’s hat when you pull a handkerchief — on one district, you might be unwinding a whole lot of rationale and reasoning that went into the map as a whole and all 125 districts.”