As Supreme Court makes Kansas congressional map permanent, it also locks in political changes

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As defenders and critics of the state’s newly authored congressional map prepared to go before the Kansas Supreme Court earlier this month, Democrats and their allies thought they had every reason to be confident.

State courts had been used elsewhere in the country as a bulwark against objectionable maps for both parties. Why would Kansas, with a majority of justices appointed by Democratic governors, be any different?

Republicans, acknowledging the realistic chance they would have to go back to the drawing board, even kept the Kansas Legislature in session so they could quickly produce new maps before the candidate filing deadline.

They needn’t have worried. When the dust settled and the Kansas Supreme Court upheld the maps, it meant not just a blow to Democrats’ political hopes in 2022 but a major statement for where the redistricting process could head in the years to come.

The maps controversially divided Wyandotte County and Kansas City, Kan., along Interstate 70, with half of the area remaining in the 3rd Congressional District represented by U.S. Rep. Sharice Davids, D-Kan. The other portion moves to the 2nd Congressional District represented by U.S. Rep. Jake LaTurner, R-Kan.

To compensate, Lawrence was moved from the 2nd District into the sweeping, conservative 1st Congressional District dominated by western Kansas

The ruling upholding these new lines prompted frustration from liberals, directed at a high court that has generally been seen as an ally, rather than a roadblock, in past cases.

And it prompted last-ditch calls for policies to reform the redistricting process that are unlikely to gain control in the Republican-controlled Legislature.

“This isn’t some knee-jerk Supreme Court,” said Bob Beatty, a professor of political science at Washburn University. “And, like many courts, it can be on both sides. Be wary off making money predicting state or national Supreme Court judgments.”

Much remains unknown about the Supreme Court’s ultimate verdict. A full ruling is forthcoming, which will give a fuller picture for whether the court believes there are any instances in which it can wade into partisan gerrymandering claims or whether the state constitution gives them no flexibility in taking up the issue at all.

But the fact that the advisory opinion was written by Justice Caleb Stegall, generally the most conservative voice on the court, signals a ruling that would seem to grant the Legislature near-total deference in map drawing.

“Plaintiffs have not prevailed on their claims that Substitute for Senate Bill 355 violates the Kansas Constitution,” Stegall wrote. “Therefore, the judgment of the district court is reversed and the permanent injunction ordered by the district court is lifted.”

The ruling instantly drew ire from Democrats who have been quick to support the court against criticism from conservatives, who have objected to past ruling on such issues as abortion and school finance.

Sen. David Haley, D-Kansas City, said he found the ruling particularly disheartening as he had gotten to know some of the justices while serving as the top Democrat on the Senate Judiciary Committee.

He said the ruling went against the judicial philosophy many of them had previously espoused.

“Apparently they don’t have the grasp of the law or the awareness of guidelines that we would have hoped,” he said. “And this is a clear indication that we’ve been misled on their ability to apply it.”

Republicans had just months earlier used unfavorable decisions from the Supreme Court as rationale to promote changes to how justices were selected to the high court.

Now they found themselves pleased. “I never got my heart rate up,” said Sen. Rick Wilborn, R-McPherson, chair of the Senate Redistricting Committee. “We knew it’d be contentious. We knew that we’re going to have draw some lines where people didn’t want them.”

Now that state courts are likely off-limits in the redistricting process, Democrats have quickly turned their attention to one of the few remaining checks on map-drawing power — changes to the redistricting process itself.

Within minutes after the Supreme Court rendered its opinion, lawmakers were calling for their colleagues to consider a nonpartisan redistricting mechanism or a constitutional amendment barring political gerrymandering.

“I also 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,” Gov. Laura Kelly said in a statement after the court’s ruling. “I’ve previously advocated for the convening of a nonpartisan voting commission to oversee the redistricting process — there’s no better time to do that than right now.”

What this might look like in practice varies from state to state.

While the bulk of the country operates like Kansas in allowing legislators to draft district lines, four states use a model, pioneered in Iowa, where nonpartisan staff submit maps to the legislatures to be voted on.

Other states have such a panel as a backup if lawmakers are unable to agree on districts. And an additional nine states have commissions composed of non-legislators and, in some cases, strictly bar the participation of elected officials, lobbyists and even nonpartisan legislative staff.

There is virtually no chance such a proposal will advance in the Kansas Legislature and Democrats’ best hope is likely to be picking up seats in the Statehouse to gain more influence over the redistricting process.

For his part, Wilborn, of the Senate Redistricting Committee, said the notion that such a map-drawing process is truly independent is a “farce.”

“There’s always been a cry for that independent commission in all 50 states, and you’ve seen what happened,” he said. “Several states have had one, they are no better off, no more pleased than others. … If you really analyze the term independent commission, there is no such thing.”

A nonpartisan mechanism has historically garnered some bipartisan support.

A proposal that would have let legislators vote on maps crafted by nonpartisan research staff languished in 2009, despite support from then-Senate President Steve Morris, R-Hugoton.

Among the proponents was Attorney General Derek Schmidt, then the Senate majority leader.

“The human instinct for self-preservation always washes over the Legislature during redistricting years,” Schmidt said in 2009. “As a result, redistricting becomes a personal issue that shapes and colors every other public policy issue considered by the Legislature.”

Notably, Schmidt’s office has argued in the redistricting case that there should be no limits placed by the court system on the Legislature’s ability to draw lines — even if political gerrymandering is clearly implicated.

Solicitor General Brent Laue said during oral arguments that such eventualities were just part of the political process.

“It is a collateral effect in how both federal and state constitutions allocate power,” Laue said in response to questioning from Justice Dan Biles.

CJ Grover, Schmidt’s campaign manager, said “there is no such thing as ‘nonpartisan’ redistricting” and that any move to restructure the Legislature’s power on redistricting would have to come via an amendment to the Kansas Constitution.

“If two-thirds of the Legislature wants to propose such a constitutional amendment to Kansas voters, Attorney General Schmidt would have no objection,” Grover said in an email. “But he thinks any such proposal is unlikely to win legislative support just as happened when he offered one years ago.”

Morris said he still thought the idea was still a good one but agreed with Schmidt on the difficult odds the proposal would face in Kansas.

“I don’t know if it would pass the current Legislature anyway,” he said.

Meanwhile, the impact on the state’s political landscape is clear. Prognosticators were quick to change the race between U.S. Rep. Sharice Davids, the state’s lone Democrat in Congress, and Republican Amanda Atkins as a “toss-up.”

Meanwhile, in the 2nd Congressional District, the departure of Lawrence will give U.S. Rep. Jake LaTurner an almost certainly safe seat to run in for reelection.

Beatty said it also will deal a “psychological blow” for liberals in the district to lose one of the state’s main Democratic areas, Lawrence, to the 1st Congressional District.

“It looks like what has happened with the 2nd has made it very, truly uncompetitive,” he said.

But the biggest long-term impact on the ruling could be emboldening Republicans, who will enter the next redistricting cycle with the knowledge that state and federal courts are unlikely to overturn the end product.

Depending on population changes elsewhere in the country, Kansas could be in line to drop from four congressional districts to three, a move that would recalibrate the dynamic entirely.

Absent that, Beatty said, lawmakers could continue molding the lines in a way that favors conservatives without fear.

Lawmakers did not, he noted, draw a district stretching from Wyandotte County to northwest Kansas, a strategy considered 10 years ago. This relative restraint could have been part of the court’s reasoning in letting the maps stand.

“One gerrymandering strategy rather than massive change is incremental, which is over a 20-, 30-year period chipping away,” he said. “That’s certainly possible. And that may be one of the reasons the Supreme Court didn’t overturn it.”

As reported in the Topeka Capital-Journal.

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