Kansas Democrats, alleging Republican gerrymander, prepare to attack new map in court
A looming Kansas court battle over the state’s new congressional map may settle what has been a bitter political fight over redistricting, with Democrats accusing Republicans of engaging in aggressive political and racial gerrymandering.
A lawsuit will be filed in state court within days, said former U.S. Attorney General Eric Holder, who leads a national Democratic group focused on redistricting.
The promise heralds what is expected to be an intensive effort to erase the GOP-drawn district boundaries that divide Wyandotte County, the most racially and ethnically diverse part of the state, for the first time in four decades. Democrats are also angered that the map places liberal-leaning Lawrence into the rural and conservative 1st Congressional District, where Democrats have little hope of winning an election.
Map opponents are expected to argue the new lines dilute the voting power of Black and Hispanic residents in the Kansas City area, undercutting the ability of minority residents — especially in Wyandotte County — to influence congressional elections. They will also point to the Lawrence shift as political gerrymandering.
Republicans will counter that the 2nd Congressional District, which encompasses eastern Kansas, is more diverse under the map. They will say the 3rd District, represented by Democratic U.S. Rep. Sharice Davids, continues to lean Democratic, though not as heavily as before.
The fight could eventually reach the Kansas Supreme Court, where a majority of justices were appointed by Democratic governors.
Kansas is part of a nationwide shift by Democrats and fair map advocates toward state-level court challenges. State courts have struck down congressional maps in North Carolina and Ohio, and the Pennsylvania Supreme Court is in the process of drawing new lines.
The United States Supreme Court in 2019 ended the power of federal courts to review maps for political gerrymandering, placing the burden on the states.
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,” said Chief Justice John Roberts, writing for a 5-4 conservative majority in cases involving new maps in Maryland and North Carolina.
Federal courts can still strike down maps found to dilute the voting power of racial minorities. But the Supreme Court appears to be setting the stage to weaken federal protections against racial gerrymandering, too.
Attorneys, professors and other close observers of redistricting — the once-a-decade process of reconfiguring congressional district boundaries to account for changes in population — told The Star that critics of the Kansas map would likely have a weak case in federal court if they allege racial gerrymandering. The 3rd District was a supermajority white district before redistricting and it remains one after.
While leading map opponents haven’t ruled out a federal challenge at some point, it appears they are betting they will receive a warmer reception in state court, where judges will be comparing the map against the Kansas Constitution, which guarantees the government provides for the “equal protection” of all people.
Mark Johnson, a law professor at the University of Kansas who has argued voting rights cases, said he believes a strong case can be made in state court against the current maps. The plaintiff, he said, will likely be a Lawrence or northern Wyandotte County voter.
“The argument would be that the congressional map is drawn in such a way that it deprives Kansans of their right to effect the election of their desired candidates,” Johnson said.
“What’s going on is that the people drawing the maps are pulling what is perceived to be Democratic strongholds apart. That’s cracking and under, sort of, classic gerrymandering law, you’re not allowed to do that.”
A state court challenge that ends up in the Kansas Supreme Court could break new legal ground in the state. No precedent exists for the state Supreme Court to involve itself in a dispute over congressional redistricting, Johnson said.
The state Supreme Court reviews state legislative and state board of education district maps passed by the Legislature. But it typically plays no role in congressional map drafting, and the major lawsuits over Kansas’s congressional districts have played out in federal court.
Lawsuit coming soon
Kansas-based critics of the map shared few additional details Thursday about how they’re expecting to contest the new boundaries. The ACLU of Kansas directed questions about legal challenges to the Mainstream Coalition, a Kansas-based organization fighting against ideological extremism, which said it had avoided involving itself in the court aspect of redistricting.
In a statement on Wednesday, ACLU of Kansas Director Micah Kubic said the entire redistricting process had unfolded unfairly, from lawmakers holding town halls at inconvenient times last fall to ignoring the public input they received. The Legislature violated its own guidelines against breaking up communities of interest by moving Lawrence, Kubic said.
“We are considering every tool at our disposal to defend against this grievous attack on the Constitution as well as on the rights of Kansas voters. We’ve taken none of our options off the table,” Kubic said.
But Holder, chairman of the National Democratic Redistricting Committee, was more clear. In a conference call with reporters on Thursday, he said a challenge will be brought in state court within the next “couple of days.”
The decision to pursue lawsuits in state courts – both in Kansas and elsewhere – comes as the U.S. Supreme Court, in its current makeup, has shown itself to not be a friend to voting rights, he said. The NDRC, which helps Democrats strategize on redistricting, will continue pursuing challenges under the federal Voting Rights Act when possible.
“But it’s forced us to look to the state courts and the state constitutions in order to bring cases,” Holder said, adding that in some cases state courts “have shown themselves to be more protective of the voting rights of the American citizenry.”
On Monday, the U.S. Supreme Court halted a lower court ruling that Alabama must draw a new congressional map to increase Black voting power. Redistricting experts have taken the decision as a sign that justices are looking more skeptically at allegations of racial gerrymandering.
“The Kansas case would be even more of an uphill climb than it would have been before,” said David Canon, a political science professor at the University of Wisconsin-Madison who has studied redistricting.
If opponents of the Kansas map bring a federal lawsuit alleging racial gerrymandering, judges would examine whether minority voters had lost the power to elect a candidate of their choosing because of redistricting, said Brian Amos, a political science professor at Wichita State University who has been a consulting expert on gerrymander challenges of maps in Florida and Maryland.
The old 3rd District is about 68% white, 14% Hispanic and nearly 10% Black. The new 3rd District, according to a rough analysis, is 75% white, 10% Hispanic and 6.3% Black. While the district is becoming less diverse, it was already a majority white district.
“I don’t think they have the numbers for either Black or Hispanic communities where they would meet that test,” Amos said.
Republicans point out that the 2nd District will go from about 79% white to 70% white. The Hispanic population will grow from 7.3% to about 13%; the Black population will grow from 6.7% to 10.9%.
“Based on what’s happened across the United States these types of maps are going to be upheld. A lot of attorneys will make money trying but I’m pretty confident that it gets upheld,” House Speaker Ron Ryckman, an Olathe Republican, said.
Rick Santorum, a Republican former U.S. senator from Pennsylvania who was visiting Kansas Thursday to lobby for a new constitutional convention, called gerrymandering a reality of politics — regardless of who drew the maps.
“Elections have consequences. If the majority is Republican and they can pass a map then they pass a map,” Santorum said. “Right now what I see is the courts are becoming just as political as the legislatures. They are certainly in Pennsylvania. I’m just hopeful that the courts stay out of this and let the legislatures act.”
But community leaders in Wyandotte County say their influence and voice in Washington is at stake.
“I really hope they find it unlawful to silence our voices,” said Rep. Tom Burroughs, a Kansas City Democrat.
This story was originally published February 11, 2022 at 5:00 AM.
