KS Supreme Court explains why it upheld GOP map, but dissent warns of assault on democracy

The Kansas Supreme Court closed the door to striking down congressional maps because of political gerrymandering on Tuesday, a defeat for Democrats and others who hoped to restrict the power of Republicans to draw districts favorable to them.

But the court left open the possibility of tossing racially gerrymandered districts in the future.

The state Supreme Court released a full opinion explaining why it rejected a lawsuit filed by groups of voters that sought to invalidate Kansas’s new Republican-drawn congressional map. The court had released an initial decision quickly in May because of candidate filing deadlines, but didn’t offer its rationale until Tuesday.

Four justices on the seven-member court, in an opinion by Justice Caleb Stegall, found that Kansas courts can’t review the maps for political gerrymandering because the use of partisanship in redistricting isn’t prohibited under the state constitution. Justices Dan Biles, Eric Rosen and Melissa Stanridge —all appointed by Democratic governors— would have ruled against the map.

Stegall, a former general counsel to Republican Gov. Sam Brownback who Brownback named to the court in 2014, concluded that “until such a time as the Legislature or the people of Kansas choose to follow other states down the road of limiting partisanship in the legislative process of drawing district lines,” the courts can’t act.

“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,” Stegall wrote. “But the constitutional text and our longstanding historical precedent foreclose those claims.”

The court’s initial decision was a blow to Democrats and progressive groups that had argued the Kansas Constitution’s guarantees of equal rights, voting rights and free speech were violated by the congressional map. The Republican-controlled Legislature overrode Democratic Gov. Laura Kelly’s veto earlier this year to enact the map.

The legal challenges in Kansas court were part of a wave of lawsuits nationwide hoping to use state courts to block partisan power grabs after the U.S. Supreme Court stopped federal courts from reviewing political gerrymandering.

The Kansas map divides Wyandotte County, the state’s most racially and ethnically diverse area, between two districts for the first time in 40 years. The split makes the race for the 3rd District, currently held by Democratic Rep. Sharice Davids, more competitive.

Lawmakers also transferred liberal-leaning Lawrence into the 1st District, a Republican stronghold that includes western Kansas.

In a scathing dissent, Rosen wrote that a majority of the court was giving a stamp of approval to an assault on the democratic system.

“In turning a blind eye to this full-scale assault on democracy in Kansas, the majority blithely ignores the plain language of this state’s Constitution,” Rosen said.

Sharon Brett, legal director for the American Civil Liberties Union of Kansas, which argued one of the redistricting lawsuits in court, said the full decision was deeply unfortunate for Kansas voters hoping to have a representative voice in democracy.

“I think that it is alarming and deeply unfortunate that the decision from the Kansas Supreme Court seems to say that partisan gerrymandering is not something they will step in and stop,” Brett said.

She added that the ACLU believed the majority had erred in its decision on racial gerrymandering by conflating the federal Voting Rights Act with the equal protection clause in the Kansas constitution.

Senate Vice President Rick Wilborn, a McPherson Republican, applauded the court’s decision.

“I’ve got to commend the Supreme Court. I think they ruled based upon the constitution and the law in Kansas,” said Wilborn, who chaired the Senate Redistricting Committee.

In a statement, Kelly reiterated her previous calls for a non-partisan redistricting commission in a statement nearly identical to one put out following the decision last month.

“The outcome of today’s Kansas Supreme Court decision is disappointing. I continue my call on legislative leaders from both parties to work together to ensure that future redistricting processes are transparent and empower Kansans to hold their elected leaders accountable,” Kelly said.

The Kansas Supreme Court indicated it would strike down a racially gerrymandered map, but said it would apply tests outlined by the U.S. Supreme Court to evaluate whether districts are racially gerrymandered in violation of the federal Voting Rights Act. The tests set a high bar, requiring race to be a “predominant factor” in legislative decision making.

Stegall wrote that the voters didn’t meet those tests.

In a separate opinion, the Kansas Supreme Court also explained why it upheld the constitutionality of new state Senate and House districts. State Sen. Tom Holland, a Baldwin City Democrat, had challenged the drawing of his Senate district, which places him in competition with incumbent Republican Sen. Beverly Gossage.

The opinion, also authored by Stegall, said the state legislative maps passed constitutional muster by adhering to the principles of “one person, one vote” and are not discriminatory.