Kansas Supreme Court issues full opinions on legislative, congressional redistricting cases

Rosen’s dissent claims U.S. House map a ‘subversion of the democratic process’

By: - June 21, 2022 10:19 am
constitutionality of the 2022 Legislature's maps recasting district boundaries for congressional and legislative seats. (Thad Allton for Kansas Reflector)

Kansas Supreme Court Justice Caleb Stegall authored the court’s full opinions Tuesday affirming constitutionality of the 2022 Legislature’s maps recasting district boundaries for congressional and legislative seats. (Thad Allton for Kansas Reflector)

TOPEKA — The Kansas Supreme Court released full opinions Tuesday of decisions affirming constitutionality of new congressional and legislative district maps for use in the 2022 elections that concluded reliance on partisanship to gerrymander district boundaries wasn’t prohibited.

Justice Caleb Stegall, writing for the majority in the congressional mapping case, said absence of standards in the Kansas Constitution or in Kansas statute limiting the Legislature’s use of political factors when crafting boundaries left the Supreme Court without a basis to reject work of state lawmakers.

“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,” Stegall said in the 105-page opinion on the congressional map. “As such, the question presented is a political question and is nonjusticiable, at least until such a time as the Legislature or the people of Kansas choose to codify such a standard into law.”

In May, the Supreme Court released a notice reversing Wyandotte County District Court Judge Bill Klapper. He had found unconstitutional the congressional map splitting racially diverse Wyandotte County between the 2nd and 3rd Districts and moving liberal-leaning Lawrence to the rural 1st District. Klapper acted in response to three lawsuits challenging the congressional map on grounds of partisan and racial gerrymandering.

The state’s highest court let stand the “Ad Astra 2” congressional map drafted by Republican legislators and adopted over Democratic Gov. Laura Kelly’s veto.

That GOP map contained in Senate Bill 355 was designed to undermine reelection prospects of U.S. Rep. Sharice Davids, the lone Democrat in the state’s federal delegation.

Stegall said the Kansas Supreme Court was guided on equal-protection claims by the 14th Amendment of the U.S. Constitution — a point that alarmed Justice Eric Rosen in a dissent. An additional dissent written by Justice Dan Biles had two co-signers, pointing to a 4-3 split decision on the congressional map.

Stegall’s closing comment in his congressional opinion said legal errors permeating the district court’s decision, which was based on the plaintiffs’ untested basket of novel claims, required the Supreme Court to reverse the lower court.

“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,” Stegall wrote. “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.”

Justice Rosen’s dissent in the congressional map case was based on a belief the dominant Kansas Republican Party in the Legislature reapportioned districts to dilute or eliminate voting rights of racial minorities and to “propel this state’s national political power toward a monolithic single-party system.”

“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,” said Rosen, who was appointed by Democratic Gov. Kathleen Sebelius. “Because I cannot countenance the subversion of the democratic process to create a one-party system of government in this state and to suppress the collective voice of tens of thousands of voters, I dissent.”

Rosen said the Supreme Court majority turned a blind eye to a full-scale assault on democracy in Kansas and “blithely ignores the plain language of this state’s Constitution” to provide equal protection to citizens of the state. He said he was fervently opposed to the majority’s “jenga-style analysis” linking equal protection guarantees in Section 2 of the Kansas Constitution’s Bill of Rights to the federal Constitution.

“With these few taps on a keyboard, the majority denies Kansans the very thing our founders envisioned: A people’s government that fervently guards the people’s equal benefit from and access to the law — regardless of what the narrower-in-scope central power has to say about it,” Rosen wrote.

Kansas Supreme Court Justice Eric Rosen offered a dissent in the congressional redistricting case that said the majority opinion ignored an assault on democracy by Republicans in the Kansas Legislature who chose to dilute voting rights of racial minorities. (Sherman Smith/Kansas Reflector)

In a separate dissent, Justice Biles said the district court in Wyandotte County laid bare how the Ad Astra 2 map of Kansas’ four congressional districts “intentionally targets fellow Kansans because of their voting history, their prior expression of political views, their political affiliations and the color of their skin.”

He wrote that it was unjust for the Supreme Court’s majority to sidestep injustices that included creation of a map with noncompact and irregularly shaped districts, unnecessarily split cities and counties, and division of communities of interest.

“So, what should be the appropriate judicial response when state action appears to cross constitutional boundaries and the government’s excuses are lame?” wrote Biles, a Sebelius appointee. “Retreat is not the answer. Courts must intervene because a desire to harm politically disfavored groups is not a legitimate government interest and our duty is to the Constitution.”

Biles’ dissent was joined by Justices Rosen and Melissa Standridge, who was appointed by Kelly.

Meanwhile, the state Supreme Court also affirmed constitutionality of the map outlining districts of the Kansas House and Kansas Senate.

In the analysis published Tuesday, Stegall wrote in a 15-page opinion the Legislature’s recasting of the 125 House and 40 Senate districts was “not a perfect plan,” because no “district reapportionment plan ever is.”

He said contents of Senate Bill 563, which applied 2020 Census figures to the remapping task, did comply with the Kansas Constitution as well as state and federal law.

“The Legislature used the procedure required by the Kansas Constitution to pass the bill,” said Stegall, an appointee of GOP Gov. Sam Brownback. “The legislative maps contained in Sub. SB 563 also satisfy the constitutional requirement of one person, one vote; they are not discriminatory; they satisfy the requirements of the Voting Rights Act; and they raise no additional constitutional concerns.”

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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.