Political gerrymandering is constitutional in Kansas, divided Supreme Court rules in precedent-setting case
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Partisan gerrymandering is constitutional in Kansas, a divided Supreme Court ruled in a precedent-setting case on the role of state courts in congressional redistricting.
The 4-3 majority opinion, written by Justice Caleb Stegall, the court's most conservative member, comes a month after the court issued a brief opinion upholding the map. Justices Dan Biles, Eric S. Rosen and Melissa Taylor Standridge dissented.
The majority based its decision in-part on the doctrine that courts shouldn't get involved when the case is primarily a political question, even if it has an actual legal controversy.
"We hold that the question presented is nonjusticiable as a political question, at least until such a time as the Legislature or the people of Kansas choose to codify such a standard into law," Stegall wrote.
The court opted to leave politicians in charge of political decisions, with the implication that voters can vote out the politicians if they disagree with the outcome.
"Democratic accountability wielded by voters is woven into the very fabric of our government and will — undoubtedly — have its say in the matter," Stegall wrote.
There also is no standard for when permitted partisan gerrymandering becomes excessive, and the court didn't express a desire to create its own standard. Stegall wrote there is no "codified law to guide judges in knowing when too much partisanship becomes so unfair as to offend constitutional principles."
Opposition to the maps primarily centered on Kansas City, Kan., which was split in half, and Lawrence, which was cut from the rest of Douglas County and put in the heavily Republican and rural "Big First." Democrats fear the moves could cost U.S. Rep. Sharice Davids her seat in Congress and make other races less competitive.
The Republican-authored bill, known as Ad Astra 2, overrode a veto from Democratic Gov. Laura Kelly after an apparent quid pro quo that got Sens. Mark Steffen, R-Hutchinson, and Alicia Straub, R-Ellinwood, to flip-flop.
More: Did Kansas Sen. Mark Steffen trade redistricting vote for bill blocking his COVID investigation?
The case centered on equal protection arguments. The plaintiffs took issue with partisan gerrymandering, arguing, among other claims, that Republican lawmakers were "targeting Democratic voters to prevent them from translating their votes into victories at the ballot box."
Wyandotte County District Court Judge Bill Klapper ruled that the map was an unconstitutional partisan and racial gerrymander. The lower court decision's "legal errors fatally undermine its conclusions," Stegall wrote.
Why it matters: Precedent
Attorney General Derek Schmidt had argued the judicial branch had no authority to review the legality of legislative and executive branch decisions on congressional redistricting legislation. The court disagreed, leaving the door open to litigation when reapportionment happens again a decade from now.
The case sets important legal precedent, as it was the first time congressional reapportionment was litigated in state court.
"In this first-of-its-kind litigation in the state of Kansas, plaintiffs assert unique and novel claims that would bar the Kansas Legislature from enacting congressional district lines such as those at issue in the map colloquially known as 'Ad Astra 2,'" Stegall wrote.
"Eager to reshape the legal landscape of redistricting in Kansas, plaintiffs invited the district court to craft new and never before applied legal standards and tests unmoored from either the text of the Kansas Constitution or the precedents of this court."
More: Lawyers, Kansas Supreme Court justices spar on constitutionality of redistricting plans
In his dissenting opinion, Rosen argued that the Legislature was working toward "a monolithic single-party system" and the court was giving a "stamp of approval to this assault on the democratic system."
"The majority is thus complicit not only in the current power grab," Rosen wrote, "it also promises future legislatures that they may with impunity divide and subdivide voters' interests to further the purposes of whichever party is in a position to seize absolute control."
Stegall disagreed.
"Just because a court declines to overrule a legislative enactment does not mean the court has rubber stamped, endorsed, or somehow participated in that enactment," Stegall wrote.
The majority stated that future lawsuits may be supported if legislators enact legal limits on partisan gerrymandering or if the facts support a racial discrimination claim.
More: Attorneys lay out core arguments on Kansas redistricting as landmark trial nears its end
Racial gerrymandering claim failed
The court held that racial gerrymandering is unconstitutional — but the plaintiffs did not "meet the legal elements required" to prove the map was racially gerrymandered or that minority votes were diluted illegally.
The justices said that race was not the predominant factor in drawing the lines and that racial minorities in the Kansas City metro were too small to be racially gerrymandered. A claim of minority vote dilution must show that the minority group is large enough in a geographically compact area to constitute a majority.
That finding means that a claim of racial gerrymandering would be unlikely to ever succeed in Kansas courts because minority populations are not a majority in more than a handful of counties.
Legislative redistricting plans upheld
The Kansas Supreme Court also upheld new maps for state legislative districts. The decision was unanimous, holding that the maps pass "constitutional muster" and the Legislature followed proper procedures.
Those maps had passed with broad bipartisan support. Under state statute, the justices are required to review Kansas House and Kansas Senate lines.
Jason Tidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jtidd@gannett.com. Follow him on Twitter @Jason_Tidd.
This article originally appeared on Topeka Capital-Journal: Kansas Supreme Court says political gerrymandering is legal
