Redistricting in Kansas: Recent Kansas Supreme Court Opinion Carries Major Ramifications
| Publication year | 2023 |
| Pages | 43 |
September, 2023
By Richard E. Levy, University of Kansas School of Law
Kansas, like every other state, must engage in legislative redistricting every 10 years to account for the results of the national census, including both congressional and state legislative districts.[1] Redistricting is a high-stakes political process with significant implications for electoral outcomes, and as a result litigation to challenge legislative redistricting is a common occurrence. Kansas is no exception.
This year, in separate opinions issued the same day, the Kansas Supreme Court rejected two constitutional challenges to legislative redistricting in the state. In Rivera v. Schwab,[2] a divided court rejected political and racial gerrymandering challenges to congressional redistricting by a narrow 4-3 margin.[3] In In re Validity of Substitute for Senate Bill 563,[4] the court unanimously rejected a challenge to districting for the Kansas House of Representatives and the Kansas Senate. Rivera is the more important decision, as it not only resolves a number of key issues surrounding challenges based on political or racial gerrymandering, but also has important implications for separation of powers and the equal protection doctrine under the Kansas Constitution. This article, therefore, focuses primarily on Rivera, but also references related issues and conclusions in Senate Bill 563.
General Background
To provide context, it is important to have some background on the constitutional doctrine that applies to legislative redistricting. Although states have general authority to regulate the electoral process, measures that impair the right to vote may be unconstitutional. Most directly, measures that prevent voters from casting their ballots, such as a poll tax, severely burden the right to vote and are usually unconstitutional.[5] On the other hand, reasonable regulations that impose only incidental burdens on the right to vote are valid.[6] Redistricting, by way of contrast, does not limit anyone's ability to cast a vote, but rather determines the manner in which votes that have been cast will be counted so as to select representatives in the legislature. Redistricting may also impair the right to vote, but it does so less directly— by diluting the weight of votes cast by some classes of voters. This kind of vote dilution claim typically arises under the Equal Protection Clause.
First and foremost, equal protection incorporates an implicit one-person, one-vote principle that requires legislative districts to be roughly equal in size, thereby ensuring that each person's vote has equal weight.[7] Thus, for example, when the Kansas Legislature could not agree on redistricting maps after the 2010 census, a federal district court ruled that the resulting malapportionment was unconstitutional and adopted a redistricting map that complied with the one-person, one-vote principle.[8] The Legislature's most recent redistricting maps were fully consistent with the one-person, one-vote principle. The plaintiffs in Rivera did not raise this sort of claim, and the Kansas Supreme Court had little difficulty rejecting a one-person, one-vote argument in Senate Bill 563.[9]
Even when districts are of equal size, boundaries may be "gerrymandered" in ways that dilute the votes of disfavored voters in violation of equal protection principles. Although gerrymandering has been around since our country's founding, recent developments in data collection and analysis have enabled political parties to engage in highly effective strategies to maximize their representation and minimize the representation of opposing parties. These strategies include drawing boundaries that "crack" disfavored voters by dividing them across multiple districts so that they are not a majority in any of them, or that "pack" disfavored voters into a few districts so as to minimize the number of districts they control.[10]
It is well established that racial gerrymandering violates equal protection, provided that there is proof of racially discriminatory intent.[11] In some cases, the bizarre shapes of the legislative districts themselves are sufficient to demonstrate a discriminatory intent because there is no other plausible explanation.[12] In other cases, direct evidence of discriminatory intent, such as statements or documents in the legislative record, may demonstrate intentional racial discrimination.[13] Racial gerrymandering claims may also be brought under § 2 of the federal Voting Rights Act,[14] which does not always require proof of discriminatory intent, although the requirements for such a claim are often difficult to meet.[15]
Political gerrymandering claims are a different story. There are powerful arguments that political gerrymandering should be considered unconstitutional,[16] but the U.S. Supreme Court has consistently rebuffed political gerrymandering claims. After years of badly fractured decisions lacking a clear rationale,[17] a majority of justices recently agreed that political gerrymandering claims are nonjusticiable political questions. In Rucho v. Common Cause,[18] the Court held that the political question doctrine applies because there are no "judicially discoverable and manageable standards" for determining when political gerrymandering is excessive. Rucho, however, suggested that political gerrymandering claims might proceed under state constitutional provisions if those provisions provided the necessary standards.[19]
Accordingly, the plaintiffs in Rivera brought their claims in state court and argued in part that the Kansas Constitution provides greater protections against political gerrymandering than the federal Equal Protection Clause.[20] The Kansas Supreme Court, however, rejected this argument and followed Rucho, concluding that political gerrymandering claims present nonjusticiable political questions under the Kansas Constitution. It also rejected the plaintiff's racial gerrymandering claims, concluding that they had failed to prove racial gerrymandering or establish the necessary elements for a racial vote dilution claim. Beyond its immediate practical effect of validating the Legislature's 2022 congressional redistricting, the court's analysis in Rivera has broad implications for constitutional doctrine in Kansas.
The Independent State Legislature Theory
One threshold question raised in Rivera was the authority of the Kansas Supreme Court to review any constitutional challenges to congressional districting.[21] The Elections Clause of the U.S. Constitution, Article I, § 4, specifies that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ... " (emphasis added). Under the so-called "independent state legislature theory," a literal reading of the highlighted language indicates that state legislatures have exclusive authority over these rules, unless overridden by Congress, thus precluding judicial review by state courts under state constitutions as well as administrative exceptions or adjustments to statutory provisions.[22]
Although the U.S. Supreme Court has previously rejected the independent state legislature theory,[23] the theory has gained renewed prominence as an argument against judicial interference with legislative regulation of the election process.[24] In some recent cases, moreover, several justices expressed at least some support for this interpretation of the Elections Clause.[25] At the time of Rivera, a pending U.S. Supreme Court case, Moore v. Harper, presented an opportunity for that Court to overrule precedent and embrace the independent state legislature theory.[26]
The State argued in Rivera that all the signs pointed to the Court's adoption of the independent state legislature theory and that the Elections Clause therefore precluded judicial review of the legislature's congressional districting map. Nonetheless, the controlling Court precedents at the time rejected the independent state legislature theory, and the Kansas Supreme Court was bound by those precedents.[27] Accordingly, the court rejected the State's argument.
Since the decision in Rivera, the final decision in Moore v. Harper has been handed down, and the Court again rejected the independent state legislature theory.[28] Thus, it is clear that congressional districting in the state is subject to ordinary state constitutional limits, and that the Elections Clause did not prevent the Rivera court from considering the plaintiffs' political and racial gerrymandering claims. The same would be true for other constitutional challenges to voting laws in federal elections, such as signature matching requirements or limitations on ballot harvesting.[29]
Gerrymandering and Equal Protection Under the Kansas Constitution
Before addressing the plaintiffs' specific claims, the Court in Rivera resolved two essential questions concerning gerrymandering claims under the Kansas Constitution. First, the Court concluded that "[t]he gravamen of the plaintiffs' [anti-gerrymandering] claims sound in equal protection."[30] Second, the Court concluded that "the equal protection guarantees found in section 2 [of the Kansas Bill of Rights] are coextensive with the equal protection guarantees afforded under the Fourteenth Amendment to the United States Constitution."[31] These conclusions paved the way for the Court to apply federal constitutional doctrine to both the political and racial gerrymandering claims.
In advancing their claims, the plaintiffs relied on multiple provisions of the Kansas Constitution, including §§ 1, 2, 3, 11, and 20 of the Kansas Bill of Rights and Article 5, § 1. By characterizing the gerrymandering claims as arising solely under equal...
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