TOPEKA, Kan. — The Kansas Supreme Court heard oral arguments Monday regarding a challenge to the state legislature’s Ad Astra 2 congressional map, which determines the voting boundaries for the four U.S. House of Representative seats delegated to Kansas.
Three lawsuits were filed against the state regarding the proposed congressional maps — Faith Rivera, et al, vs. Scott Scwab; Tom Alonzo, et al, vs. Scott Schwab; and Susan Frick, et al, vs. Scott Schwab. The cases were combined into one case.
Kansas Secretary of State Scott Schwab and the election commissioners for Wyandotte and Douglas counties were named as defendants in the lawsuits.
The Kansas legislature, which passed the proposed maps earlier this year, overrode a veto by Gov. Laura Kelly, landing the case in court.
Kansas took the position that the court has no constitutional grounds to review a gerrymandering case based on political parties, suggesting that plaintiffs were inventing a new class, while attorneys for the plaintiffs argued that intentionally diluting minority votes violates the state constitution’s equal protection clause.
In its opening arguments, the state argued that a Wyandotte County judge’s decision to overturn the maps passed by the Kansas legislature was “unprecedented.”
Kansas Solicitor General Brant Laue called gerrymandering a “collateral effect” of the partisan nature of the drawing of congressional maps.
Justice Dan Biles immediately pushed back, asking if partisan gerrymandering is ever a “legitimate political interest” and suggested the Ad Astra 2 map was “government action targeting other Kansans.”
Stephen R. McAllister, who represents plaintiffs in the Frick case, later argued that partisan gerrymandering "isn't justified as a matter of reason, in the moral good or in the people's interest."
But Laue argued that he does not believe gerrymandering is ever unconstitutional based on his reading of the Kansas Constitution.
He also declined to offer his own definition of "gerrymandering" when asked, but pushed back on the idea that Democratic voters in Lawrence and Wyandotte County were targeted.
“There is no basis for saying this is some sort of revenge or retaliation,” Laue said. “It’s politics, and there are winners and losers in politics. Some people come out on the longer end and some people come out on the shorter end.”
On the contrary, during the plaintiffs' opening argument, Sharon Brett, an attorney with the ACLU of Kansas, argued that the government abdicated its constitutional responsibility to ensure equal rights by targeting a group of people.
Previously, Laue countered that it is inarguable that populations of Johnson and Wyandotte counties have grown too large to remain in the same district, so the legislature had to act and simply used its discretion to split Wyandotte County rather than Johnson County.
He said the legislature’s primary rationale was that Johnson County is considered “the economic engine” of Kansas and pointed to the legislative record for other examples of the rationale used, including the choice to separate Lawrence from the rest of Douglas County and place it in a new district.
Brett argued that “the right to vote is essential” and enshrined in the state constitution, but the Ad Astra 2 map treats "similarly situated groups of voters" differently by cracking Wyandotte County into different districts and packing the newly created districts with stronger GOP majorities.
She argued that there was deliberate intent on behalf of the legislature “of making sure that one group of voters’ votes means less than another.”
Brett argued that the legislative intent was to split like-minded minority voters into different districts with the specific aim to dilute the vote of those citizens.
The new move also carves out Lawrence from the Kansas 2nd District, ensuring it will remain decidedly under GOP control, and moves it the Kansas 1st District, which includes most of western and north-central Kansas.
Voters in Douglas County also sued over the maps, arguing that there was "invidious intent" to deny legal protection to Democratic voters — particularly in Lawrence.
“You have to start with a baseline,” McAllister, a former Kansas solicitor general and law professor at the University of Kansas, said. “The baseline is the map we had and the map we’re going to.”
McAllister said it is clear that voters in Lawrence and Wyandotte County were specifically targeted to take away “a meaningful opportunity to participate” in an effort to diminish the political power of select citizens.
“It’s no secret how the city of Lawrence votes,” McAllister said.
Lali Madduri, a voting rights and election lawyer with the Elias Law Group, argued that to ascribe to the state’s argument that the Kansas Supreme Court has no authority in the case “impinges on the constitutional function of courts” and bucks Supreme Court of the United States rulings and precedent and federal law.
As for remedy, McAllister suggested the Ad Astra 2 map should be enjoined and the Kansas Supreme Court or a federal court ought to have a role in drawing the new maps.
The Kansas legislature approved the Ad Astra 2 maps in late January.
Wyandotte County District Court Judge Bill Klapper sided with plaintiffs in three lawsuits, which were combined together.
Loud Light, a civic-engagement organization, and the ACLU of Kansas filed suit in February, accusing the state legislature of gerrymandering with passage of the Ad Astra 2 maps.
Several groups of voters in Wyandotte County, which was split in half under the Ad Astra 2 map as Republicans sought a way to gain greater support in the Kansas 3rd District for the U.S. House of Representatives, sued on the grounds that the new map constituted gerrymandering and the dilution of minority voting rights.
Kansas appealed Klapper's decision to the state's high court.
The lawsuits came after Kelly vetoed the maps Feb. 3.
The Kansas Senate overrode her veto Feb. 8 and the Kansas House overrode her veto Feb. 9.
The Kansas congressional map also drew national attention and a legal battle was expected.
The Kansas Legislature, which is controlled by a Republican supermajority, plans to reconvene May 23 in anticipation that the Kansas Supreme Court will reject the Ad Astra 2 map.
After hearing arguments for 2 1/2 hours, the Kansas Supreme Court announced that it was in recess until 9 a.m. on Wednesday, but it's unclear when a decision could be expected. The case is on an expedited timeline.
Kansas Supreme Court Justice Eric Rosen, who tested positive for COVID-19, was not present for the hearing. He watched a stream of the arguments from isolation and will participate in the vote.
