Kansas court wrestles with barring political gerrymandering

May 17, 2022 GMT
Kansas Supreme Court Justice Dan Biles gestures during arguments over whether a new congressional redistricting law enacted by Republican lawmakers violates the state constitution, Monday, May 16, 2022, in Topeka, Kan. The Supreme Court is considering the state's appeal of a lower-court ruling that struck down the law and ordered the Legislature to draft a new redistricting plan (Thad Allton/Kansas Reflector via AP, Pool)
Kansas Supreme Court Justice Dan Biles gestures during arguments over whether a new congressional redistricting law enacted by Republican lawmakers violates the state constitution, Monday, May 16, 2022, in Topeka, Kan. The Supreme Court is considering the state's appeal of a lower-court ruling that struck down the law and ordered the Legislature to draft a new redistricting plan (Thad Allton/Kansas Reflector via AP, Pool)
Kansas Supreme Court Justice Dan Biles gestures during arguments over whether a new congressional redistricting law enacted by Republican lawmakers violates the state constitution, Monday, May 16, 2022, in Topeka, Kan. The Supreme Court is considering the state's appeal of a lower-court ruling that struck down the law and ordered the Legislature to draft a new redistricting plan (Thad Allton/Kansas Reflector via AP, Pool)
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Kansas Supreme Court Justice Dan Biles gestures during arguments over whether a new congressional redistricting law enacted by Republican lawmakers violates the state constitution, Monday, May 16, 2022, in Topeka, Kan. The Supreme Court is considering the state's appeal of a lower-court ruling that struck down the law and ordered the Legislature to draft a new redistricting plan (Thad Allton/Kansas Reflector via AP, Pool)
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Kansas Supreme Court Justice Dan Biles gestures during arguments over whether a new congressional redistricting law enacted by Republican lawmakers violates the state constitution, Monday, May 16, 2022, in Topeka, Kan. The Supreme Court is considering the state's appeal of a lower-court ruling that struck down the law and ordered the Legislature to draft a new redistricting plan (Thad Allton/Kansas Reflector via AP, Pool)

TOPEKA, Kan. (AP) — A top Kansas government attorney argued Monday that congressional redistricting is naturally political and that the Kansas Supreme Court shouldn’t try to decide when partisanship goes too far, only to be chastised by one of the justices for making a “boys will be boys” argument.

The Supreme Court heard arguments in the state’s appeal of a lower court ruling that represented the first time that a Kansas court declared that partisan gerrymandering violates the state constitution. The lower court ruling struck down a Republican congressional redistricting law that would make it harder for the only Democrat in the state’s congressional delegation to win reelection this year. The GOP-controlled Legislature enacted it over Democratic Gov. Laura Kelly’s veto.

Federal judges — not the Kansas courts — have typically reviewed congressional boundaries, but the U.S. Supreme Court declared in 2019 that complaints about partisan gerrymandering are political issues and not for the federal courts to resolve.

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Kansas Solicitor General Brant Laue argued that Kansas’ top court should take the same position. The Kansas Constitution mentions only legislative redistricting and does not contain any specific provisions prohibiting gerrymandering.

“Congressional redistricting is political by design,” Laue said. “The Legislature, and not the state judiciary, is designed and equipped to make the political determinations that cannot be avoided.”

The Supreme Court did not say when it would rule, though both sides are hoping it will be within days. Also, the Legislature is set to reconvene next week for a day or two of work if the justices reject the new congressional map or new boundaries for legislative districts that the court also reviewed Monday. The Kansas secretary of state’s office on Monday delayed the filing deadline for congressional and legislative candidates to June 10 from June 1.

During Monday’s hearing, the seven-member court wrestled with how to determine when improper political gerrymandering has occurred. Justice Caleb Stegall questioned whether the term can be clearly defined.

“I need to know what my standards are,” added Justice Evelyn Wilson.

Lawsuits over new congressional-district lines have proliferated across the U.S., with Republicans looking to recapture a U.S. House majority in this year’s midterm elections. State courts have issued decisions favoring Democrats in North Carolina, Ohio and Pennsylvania, and a new GOP map in Florida has been invalidated by a state court judge. New York’s highest court recently declared that that state’s new districts were gerrymandered to favor Democrats.

In Kansas, 20 Democratic voters and a voting-rights group, Loud Light, filed three lawsuits against the new congressional map. District Judge Bill Klapper in Wyandotte County in the Kansas City area agreed with them that the new lines were too partisan and diluted minority voters’ political clout. He ordered lawmakers to draw a new map.

Justice Dan Biles told Laue that he is asking the state Supreme Court to accept that “boys will be boys” when legislators target specific colleagues.

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“How is partisan gerrymandering ever a legitimate government interest?” Biles asked.

Laue told Biles that politics is part of the process of drawing new maps and, “It can’t be distilled from the process.”

Republican legislative leaders argued that based on 2020 results, Davids still can win her new district. They said their map was a fair way to rebalance the population in each of the state’s congressional districts to make them as equal as possible after 10 years of demographic shifts. Republicans rejected the argument that they improperly diluted minority voters’ clout.

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The new Kansas map moved the northern part of Kansas City, Kansas, out of the 3rd District represented by Democratic Rep. Sharice Davids and into the larger 2nd District of eastern Kansas represented by Republican Rep. Jake LaTurner. Kansas City, Kansas, is among the few Democratic strongholds in the GOP-leaning state. Davids lost territory where she performs well, while the new map added several rural, heavily Republican counties to her district.

The map also moved the liberal northeastern Kansas city of Lawrence — another Democratic stronghold and home to the main University of Kansas campus — out of the 2nd District. The city of 95,000 is now in the already sprawling 1st District of central and western Kansas with small conservative communities, some six hours away by car.

Klapper relied heavily on the testimony of a University of Michigan political scientist who used a computer algorithm to produce 1,000 alternative redistricting plans to conclude that the new districts “are extreme pro-Republican partisan outliers.”

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“Each individual should not have their votes relegated to not matter simply because of who they vote for,” said Sharon Brett, an attorney for the American Civil Liberties Union of Kansas.

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Follow John Hanna on Twitter at https://twitter.com/apjdhanna