Rivera v. Schwab

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 125,092
FAITH RIVERA et al., TOM ALONZO et al., and SUSAN FRICK et al.,
Appellees,
v.
SCOTT SCHWAB, Kansas Secretary of State, in His Official Capacity,
and MICHAEL ABBOTT, Wyandotte County Election Commissioner,
in His Official Capacity,
Appellants,
and
JAMIE SHEW, Douglas County Clerk,
in His Official Capacity,
Appellee.
SYLLABUS BY THE COURT
1.
The Elections Clause in Article I, Section 4 of the United States Constitution does
not bar this court from reviewing reapportionment legislation for compliance with the
Kansas Constitution.
2.
In this case, the gravamen of plaintiffs' claims sound in equal protection. While
the other provisions of the Kansas Constitution relied upon by plaintiffs and the district
court—Kan. Const. Bill of Rights, §§ 1, 3, 11, 20; art. 5, § 1—protect vital rights, they do
not provide an independent basis for challenging the drawing of district lines.
1
3.
Section 2 of the Kansas Constitution Bill of Rights is the textual grounding and
location of our Constitution's guarantee of equal protection to all citizens.
4.
The equal protection guarantees afforded all Kansans by section 2 of the Kansas
Constitution Bill of Rights is coextensive with the equal protection guarantees found in
the Fourteenth Amendment to the United States Constitution. Therefore, Kansas courts
shall be guided by United States Supreme Court precedent interpreting and applying the
equal protection guarantees of the Fourteenth Amendment when we are called upon to
interpret and apply the coextensive equal protection guarantees of section 2 of the Kansas
Constitution Bill of Rights.
5.
The use of partisan factors in district line drawing is not constitutionally
prohibited.
6.
In the absence of express standards codified in either the Kansas Constitution or in
Kansas law constraining or limiting the Legislature's use of partisan factors in drawing
district lines, we can discern no judicially manageable standards by which to judge a
claim that the Legislature relied too heavily on the otherwise lawful factor of partisanship
when drawing district lines. As such, the question presented is a political question and is
nonjusticiable, at least until such a time as the Legislature or the people of Kansas choose
to codify such a standard into law.
2
7.
Government decision-making based predominantly on race is antithetical to the
principles of equal protection enshrined in both the Fourteenth Amendment and in section
2 of the Kansas Constitution Bill of Rights. Section 2 prohibits the drawing of district
boundaries on the basis of race unless the Government can show that its action was in
furtherance of a compelling state interest and was narrowly tailored to satisfy that
interest. Compliance with the federal Voting Rights Act may be a compelling state
interest.
8.
The equal protection guarantees found in the Fourteenth Amendment and in
section 2 of the Kansas Constitution Bill of Rights protect against two distinct kinds of
racial discrimination in the drawing of district lines. First, section 2 protects against racial
gerrymandering which occurs when a legislative body uses race as the predominant factor
in choosing where to draw the lines. Second, section 2 protects against targeted minority
voter dilution which occurs when a legislative body invidiously discriminates against a
minority population to minimize or cancel out the potential power of the minority group's
collective vote.
9.
The United States Supreme Court has set forth explicit legal tests to be applied to
each of the two distinct kinds of racial discrimination claims that allege a particular
legislative line-drawing enactment violates equal protection. We expressly adopt those
same tests to apply when those challenges are made under section 2 of the Kansas
Constitution Bill of Rights.
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10.
When a claim of racial gerrymandering is made, the plaintiffs must show that race
was the predominant factor motivating the Legislature's decision to place a significant
number of voters inside or outside of a particular district. To make this showing, a
plaintiff must prove that the Legislature subordinated lawful, race-neutral districting
factors—such as compactness, respect for political subdivisions, and partisan
advantage—to unlawful racial considerations.
11.
When a claim of minority vote dilution is made, the plaintiffs must show that
(1) the minority group is sufficiently large and geographically compact to constitute a
majority in a single member district; (2) the group is politically cohesive; and (3) there
exists sufficient bloc voting by the white majority in the new allegedly diluted districts to
usually defeat the preferred candidate of the politically cohesive minority bloc. If a
plaintiff fails to establish these three points, there neither has been a wrong nor can there
be a remedy. If the plaintiff can establish these three points, the court next inquires
whether, as a result of the challenged plan, the plaintiffs do not have an equal opportunity
to participate in the political process and to elect candidates of their choice. We review
the totality of the circumstances in determining whether a minority group has the
opportunity to participate in the political process.
12.
The record below demonstrates that plaintiffs did not ask the district court to apply
the correct applicable legal tests to their race-based claims. The district court, in turn, did
not apply these legal tests to plaintiffs' race-based claims. Perhaps unsurprisingly then,
the district court did not make the requisite fact-findings to satisfy either legal test
applicable to plaintiffs' race-based equal protection claims. Therefore, on the record
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before us, plaintiffs have failed to satisfy their burden to meet the legal elements required
for a showing of unlawful racial gerrymandering or unlawful race-based vote dilution.
Appeal from Wyandotte District Court; BILL KLAPPER, judge. Decision announced May 18,
2022. Opinion filed June 21, 2022. Reversed and injunction order is lifted.
Brant M. Laue, solicitor general, argued the cause, and Kurtis K. Wiard, assistant solicitor
general, Shannon Grammel, deputy solicitor general, Dwight R. Carswell, deputy solicitor general, Jeffrey
A. Chanay, chief deputy attorney general, Derek Schmidt, attorney general, Anthony F. Rupp, of Foulston
Siefkin LLP, of Overland Park, and Gary Ayers and Clayton Kaiser, of the same firm, of Wichita, were
with him on the briefs for appellants.
Stephen R. McAllister, of Dentons US LLP, of Kansas City, Missouri, argued the cause, and Mark
P. Johnson, Betsey L. Lasister, and Curtis E. Woods, pro hac vice, of the same firm, were with him on the
briefs for appellees Susan Frick et al.
Lalitha D. Madduri, pro hac vice, of Elias Law Group LLP, of Washington, D.C., argued the
cause, and Spencer W. Klein, pro hac vice, Joseph N. Posimato, pro hac vice, of the same firm, Abha
Khanna, pro hac vice, and Jonathan P. Hawley, pro hac vice, of the same firm, of Seattle, Washington,
and Barry R. Grissom and Jake Miller, pro hac vice, of Grissom Miller Law Firm LLC, of Kansas City,
Missouri, were with her on the brief for appellees Faith Rivera et al.
Sharon Brett, Josh Pierson, and Kayla DeLoach, of American Civil Liberties Union Foundation
of Kansas, of Overland Park, and Mark P. Gaber, pro hac vice, Richard Samuel Horan, pro hac vice, and
Orion de Nevers, pro hac vice, of Campaign Legal Center, of Washington, D.C., Elisabeth S. Theodore,
R. Stanton Jones, and John A. Freedman, of Arnold & Porter Kaye Scholer LLP, of Washington, D.C.,
and Rick Rehorn, of Tomasic & Rehorn, of Kansas City, were on the briefs for appellees Tom Alonzo et
al.
No appearance by Jamie Shew, appellee.
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Edward D. Greim, Todd P. Graves, and George R. Lewis, of Graves Garrett LLC, of Kansas City,
Missouri, were on the brief for amicus curiae Kansas Legislative Coordinating Council.
Teresa A. Woody, of Kansas Appleseed Center for Law and Justice Inc., of Lawrence, was on the
brief for amicus curiae Kansas Appleseed Center for Law and Justice Inc.
The opinion of the court was delivered by
STEGALL, J.: In this first-of-its-kind litigation in the state of Kansas, plaintiffs
assert unique and novel claims that would bar the Kansas Legislature from enacting
congressional district lines such as those at issue in the map colloquially known as "Ad
Astra 2." Eager to reshape the legal landscape of redistricting in Kansas, plaintiffs invited
the district court to craft new and never before applied legal standards and tests unmoored
from either the text of the Kansas Constitution or the precedents of this court. Accepting
the invitation, the lower court found the legislative reapportionment in Ad Astra 2
constitutionally deficient as a partisan and racial gerrymander. On review, we find the
district court's legal errors fatally undermine its conclusions and, applying the correct
legal standards to the facts as found by the lower court, we determine that on the record
before us, plaintiffs have not prevailed on any of their claims that Ad Astra 2 violates the
Kansas Constitution. Accordingly, we reverse the judgment of the lower court.
FACTUAL AND PROCEDURAL BACKGROUND
The Kansas Legislature is required to redraw Kansas' congressional districts every
decade based on population shifts documented in the United States Census. The
Legislature fulfilled this duty by passing Substitute for Senate Bill 355 which contained
the Ad Astra 2 congressional map. Governor Laura Kelly vetoed the bill, but the
Legislature was able to override Governor Kelly's veto, and the bill took effect on
February 10, 2022. The new districts gave rise to three lawsuits that were consolidated in
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Wyandotte County. After a trial, the district court determined that Sub. SB 355 violates
the Kansas Constitution. Defendants, who we will refer to as the State, appealed and on
May 18 we held that, on the record before us, plaintiffs have not prevailed on their claims
that Sub. SB 355 violates the Kansas Constitution. We reversed the judgment and lifted
the permanent injunction ordered by the district court. Today, we fully set forth the facts,
rationale, and holdings of the court.
Last year, the Kansas Legislature began the process of preparing to redraw Kansas'
four congressional districts according to the 2020 Census. Through in-person and virtual
meetings, the House and Senate Committees on Redistricting held a listening tour of
town hall meetings across the state—14 meetings were held in 14 cities in August 2021,
and 4 meetings were held virtually in November 2021.
Also playing a role in the process is the document known as "the Guidelines."
The Proposed Guidelines and Criteria for 2022 Congressional and State Legislative
Redistricting are a set of principles that set forth "traditional redistricting criteria"
substantively the same as those used in the 2012 redistricting cycle. The Guidelines
provide calculations for the correct population metrics to determine district size, as well
as general priorities for the Legislature to consider. Those priorities include: (1) basing
districts on data from the 2020 Census; (2) crafting districts as numerically as equal in
population as practical; (3) the plan should have neither the purpose nor effect of diluting
minority voting strength; (4) the districts should be as compact and contiguous as
possible; (5) the integrity of existing political subdivisions should be preserved when
possible; (6) the plan should recognize communities of interest; (7) the plan should avoid
contests between incumbents when possible; and (8) the districts should be easily
identifiable and understandable by voters.
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The Legislature's bipartisan Redistricting Advisory Group adopted the Guidelines
and the Senate and House Redistricting Committees received presentations on the
Guidelines at initial meetings in January 2022. Only the House Committee on
Redistricting adopted the Guidelines—the Senate Committee on Redistricting did not.
And more importantly, neither the House nor the Senate as a whole adopted the
Guidelines.
Senate Bill 355 was introduced in the Senate on January 20, 2022, and referred to
the Committee on Redistricting. The report of the Senate Committee on Redistricting
recommended that Sub. SB 355 be adopted. On January 21, several proposed
amendments to the plan introduced on the Senate floor were rejected, and that same day
the Senate passed Sub. SB 355 on emergency final action by a vote of 26 to 9. The bill
was sent to the House on January 24, passed the House Redistricting Committee, and
reached the House floor on January 25. After several motions to amend were rejected, the
House passed the bill by a vote of 79 to 37.
Sub. SB 355 was then enrolled and presented to Governor Kelly on January 27.
Governor Kelly vetoed the bill on February 4. Initially, the motion to override the veto
failed, and the veto was sustained. But upon a motion to reconsider, the Senate voted to
override the veto 27 to 11, and the House 85 to 37. Sub. SB 355 took effect upon
publication in the Kansas Register on February 10, 2022.
Shortly thereafter, plaintiffs sued in state court in Wyandotte County to enjoin the
use of Sub. SB 355 in the upcoming elections. The plaintiffs in Rivera v. Schwab and
Alonzo v. Schwab sued Kansas Secretary of State Scott Schwab and Wyandotte County
Election Commissioner Michael Abbott, alleging that Sub. SB 355 is a partisan and racial
gerrymander and dilutes minority votes in violation of several provisions of the Kansas
Constitution. Two weeks later, the plaintiffs in Frick v. Schwab sued Schwab and
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Douglas County Clerk Jamie Shew in Douglas County also alleging that Sub. SB 355 is
an unconstitutional partisan gerrymander. We will collectively refer to the plaintiffs in
the three actions as plaintiffs.
Plaintiffs' petitions brought several claims under the Kansas Constitution. The
Alonzo plaintiffs argued that Ad Astra 2 (1) violates Kansas Constitution Bill of Rights
sections 1 and 2 "because it targets [plaintiffs] for differential treatment based upon their
political beliefs and past votes"; (2) violates sections 3 and 11 of the Kansas Constitution
Bill of Rights because it "discriminates against Kansas Democrats based on their
protected political views and past votes, burdens the ability of those voters to effectively
associate, and retaliates against Democrats for exercising political speech" by preventing
"them from being able to coalesce their votes and elect their preferred candidates who
share their political views"; (3) "imposes a severe burden" on plaintiffs' right to vote
under Article 5, section 1 by "targeting Democratic voters to prevent them from
translating their votes into victories at the ballot box"; and (4) violates equal protection
guarantees in sections 1 and 2 of the Kansas Constitution Bill of Rights because it was
"created specifically to eliminate the only seat currently held by a minority."
The Rivera plaintiffs similarly claimed violations under the Kansas Constitution
citing the right to vote, equal protection, freedom of speech, and freedom of assembly, as
well as making claims of racial vote dilution. The Rivera plaintiffs also argued that Ad
Astra 2 impermissibly split Kansas' four Native American reservations into two districts.
The Frick plaintiffs allege that the Legislature engaged in partisan gerrymandering
by "scooping out" the City of Lawrence from District 2 and adding it to the "Big First."
They allege violations of the Kansas Constitution Bill of Rights sections 1, 2, 3, 11, 20,
and Article 5, section 1. The Frick plaintiffs, like the Alonzo and Rivera plaintiffs,
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contend that Ad Astra 2 was developed in secret, rushed through the legislative process,
and contradicts established redistricting guidelines.
Plaintiffs recognized that population growth has made it impossible to keep
Wyandotte County and Johnson County in a single district but asserted that it was
possible and desirable to preserve Wyandotte County in a single district. They argued that
under the new plan, the likely electoral outcomes now "are entirely inconsistent with the
statewide preferences of Kansas voters," noting that Democrats received 40% of the votes
from 2016 to 2020, but asserting that in future elections Democrats will only have a
chance to win 25% of the seats at best, with a likelihood that Democrats may receive no
seats at all.
They further asserted that while each plaintiff is currently able to "elect a
candidate of their choice in Congressional District [CD] 3," under the new plan, CD 3 is
now "cracked," separating a portion of minority voters from "crossover white voters."
Plaintiffs allege that these minority voters are now "submerged" in the new CD 2 and
CD 3 where "white bloc voting will prevent them from electing their preferred
candidates." They assert that minority voters—which comprise 29% of the voting age
population in CD 3—are only "able to elect their preferred candidate with assistance from
a portion of white voters," because "while white voters in Kansas strongly prefer
Republican candidates overall, enough white voters in current District 3 cross over to
support minority-preferred Democratic candidates to permit those candidates to prevail."
After plaintiffs filed their lawsuits, Schwab and Abbott petitioned our court for
mandamus and quo warranto seeking dismissal of the cases. We denied the petition, as
mandamus and quo warranto were not available remedies. See Schwab v. Klapper, 315
Kan. 150, 154-55, 505 P.3d 345 (2022). We then consolidated the three cases in
Wyandotte County. Defendants moved to dismiss the cases, which the district court
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denied after a hearing. After an expedited discovery schedule, trial began on April 4,
2022. At the close of plaintiffs' case, defendants moved for judgment, which the district
court again denied.
On April 25, 2022, the district court held that Sub. SB 355 violates the Kansas
Constitution as both a partisan and a racial gerrymander. Alongside photographs of
legislators looking at their phones during their listening tours, the district court first stated
that Ad Astra 2 was created in secret and "pushed through the Legislature" on "largely
party-line votes" and "with no Democratic support." The court took issue with the fact
that the "map-drawers remain a mystery," and the court pointed to testimony from a
Senator indicating that it "is not common" for a bill to move so quickly out of committee.
The district court found that a net total of 116,668 people, or 3.9% of Kansas'
population, had to be moved to meet population requirements, but noted that Ad Astra 2
moves 394,325 people, or 13.4% of the state population—significantly more than
necessary to meet district population requirements.
The court further stated that "the map split known communities of interest, ignored
public input, diluted minority votes, and constituted 'textbook gerrymandering.'" The
court found that "Ad Astra 2 was designed intentionally and effectively to maximize
Republican advantage," relying on expert testimony to conclude that the plan "is an
intentional, effective partisan gerrymander." The court, again relying on expert
testimony, found that "partisan intent predominated over the Guidelines and traditional
redistricting criteria in the drawing of Ad Astra 2 and is responsible for the Republican
advantage" in Ad Astra 2. The district court found that plaintiffs' experts' use of statewide
elections "to measure the partisanship of simulated and enacted districts is a reliable
methodology," and concluded that "Ad Astra 2's districts are less compact than they
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would be under a map-drawing process that adhered to the Guidelines and prioritized the
traditional districting criterion of compactness."
The district court, again crediting expert testimony, found that "Ad Astra 2 was
designed to give Republicans a partisan advantage, and that the enacted plan exhibits
extreme pro-Republican bias that cannot be explained by Kansas's political geography or
by adherence to the Guidelines or traditional redistricting criteria." The court credited
expert testimony that asserted splitting Lawrence from Douglas County diluted the votes
of Democratic voters in the region and found that the experts' evidence demonstrated
"that Ad Astra 2 disregards communities of interest in support of partisan gains."
In addition to its findings regarding partisan factors, the district court also stated
that "Ad Astra 2 has high levels of racial dislocation" and concluded that the plan
"intentionally and effectively dilutes the voting power of Wyandotte County's minority
communities." The court again credited plaintiffs' experts that testified that "racial
minorities were moved among districts far more often than white Kansans and that they
were divided between districts in a way that contravenes Kansas's racial geography and
dilutes minority voting strength." The court further found that the new plan "has the
effect of eliminating a performing minority crossover district," resulting in a "particularly
pronounced" impact on minority Democratic voters "because the plan treats Democratic
minority voters considerably worse than it treats white Democratic and white Republican
voters."
The court also credited expert testimony that Ad Astra 2 "negatively impacts the
state's Native American community" because the new plan places the Prairie Band
Potawatomi reservation into the first district, whereas under the prior plan, all four Native
American reservations in Kansas were in the second district. In sum, the court concluded
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that "Ad Astra 2's dilution of Democratic voting power will obstruct Plaintiffs' ability to
elect and support their candidates of choice."
It is critical at this juncture to stop and observe that many of the lower court's fact-
findings embed a form of question begging as to what—exactly—is the legal measuring
stick doing the work behind the finding. Put another way, many of the district court's
found facts are not stated in the form of a pure factual finding. Instead, they assume
within them an unstated and unquestioned legal standard. For example, what counts as
"treat[ing] Democratic minority voters considerably worse than . . . white Democratic and
white Republican voters"? By what standard is the district court measuring an
"intentional[] and effective[] dilut[ion]" of the minority vote? As we will explain at
greater length below, when a district court mixes questions of law and fact like this,
disentangling them may be impossible on review. This is especially true when it is
clear—as it is here—that the lower court's findings of fact are permeated with and tainted
by erroneous legal conclusions.
In any event, after these mixed conclusions of fact and law, the lower court then
held the Kansas Constitution "prohibit[s] partisan gerrymandering" to any degree. The
court believed it "neither necessary nor prudent" to "articulat[e] a bright-line standard"
for political gerrymandering claims. Rather, it "suffice[d] for the Court's purposes that a
standard exists" for the present case. Relying on "opinions of the highest courts in other
states"—rather than the text of the Kansas Constitution—the district court created its own
test: (1) "the Legislature acted with the purpose of achieving partisan gain by diluting the
votes of disfavored-party members" and (2) the map "will have the desired effect of
substantially diluting disfavored-party members' votes." In applying this test, the district
court relied on what it discerned as "partisan fairness metrics" and "neutral criteria."
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Applying this test, the lower court found Ad Astra 2 to be an impermissible "intentional
and effective partisan gerrymander" and concluded that Sub. SB 355 could not satisfy
strict scrutiny.
The lower court then turned to plaintiffs' race-based claims. Acknowledging that
such claims sound in equal protection, the district court held that the Kansas Constitution
"affords separate, adequate, and greater" equal protection guarantees "than [does] the
federal Constitution." Following this, the district court devised and applied its own five
factor test to decide that Ad Astra 2 was an impermissible racial gerrymander that also
unconstitutionally diluted minority votes in violation of the Kansas Constitution. It
acknowledged that the elements of such a claim—and whether they include a showing of
discriminatory intent—is an "issue of first impression." But it declined to decide whether
a showing of intent was required because it determined Ad Astra 2 both "intentionally
and effectively dilutes minority votes." Under the legal tests crafted by the district court,
this was sufficient, in its view, to find Ad Astra 2 violates the Kansas Constitution.
The district court permanently enjoined Kansas' election officials "from preparing
for or administering any primary or general congressional election under Ad Astra 2."
And it further ordered that the "Legislature shall enact a remedial plan in conformity with
this opinion as expeditiously as possible." The State immediately appealed to this court.
DISCUSSION
On appeal, the parties spar over several questions: (1) whether the Elections
Clause bars state courts from reviewing reapportionment legislation for compliance with
state law; (2) what standards this court should use when interpreting and applying the
relevant provisions in the Kansas Constitution; (3) whether claims of partisan
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gerrymandering are justiciable; and (4) whether Ad Astra 2 discriminates against
minority voters. We consider each issue below.
But before doing so, we observe that while respecting the dissenters'
disagreements with our constitutional reasoning and conclusions, rhetoric describing this
outcome as a "stamp of approval" or "complicit" is out of place. Just because a court
declines to overrule a legislative enactment does not mean the court has rubber stamped,
endorsed, or somehow participated in that enactment. Indeed, "[c]ourts are only
concerned with the legislative power to enact statutes, not with the wisdom behind those
enactments. When a legislative act is appropriately challenged as not conforming to a
constitutional mandate, the function of the court is . . . merely to ascertain and declare
whether legislation was enacted in accordance with or in contravention of the
constitution—and not to approve or condemn the underlying policy." Samsel v. Wheeler
Transport Services, Inc., 246 Kan. 336, 348-49, 789 P.2d 541 (1990), abrogated on other
grounds by Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), and Hilburn v.
Enerpipe Ltd., 309 Kan. 1127, 442 P.3d 509 (2019).
I. WE HAVE JURISDICTION TO HEAR PLAINTIFFS' CLAIMS
The Attorney General claims the Elections Clause of the United States
Constitution bars any state court from considering the validity of legislatively enacted
congressional district maps. The Elections Clause provides:
"The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the Places of chusing Senators."
U.S. Const. art. I, § 4.
15
The State frames its argument as a complete jurisdictional bar, arguing broadly
that "when the state legislature missteps, the authority to correct it lies with Congress."
We are unpersuaded. The United States Supreme Court has never embraced this view of
the Elections Clause. In 1932, the Supreme Court examined whether the Elections Clause
"invest[ed] the legislature with a particular authority" which would "render[] inapplicable
the conditions which attach to the making of state laws." Smiley v. Holm, 285 U.S. 355,
365, 52 S. Ct. 397, 76 L. Ed. 795 (1932). The Court concluded that "the exercise of the
authority must be in accordance with the method which the State has prescribed for
legislative enactments," finding "no suggestion in the [Elections Clause] of an attempt to
endow the legislature of the State with power to enact laws in any manner other than that
in which the constitution of the State has provided that laws shall be enacted." 285 U.S.
at 367-68.
And in recent years, the Supreme Court has continued to reject similar arguments.
See Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484, 2495-96, 204 L. Ed. 2d 931(2019) (rejecting the argument that "through the Elections Clause, the Framers set aside
electoral issues such as the one before us as questions that only Congress can resolve");
Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S. 787,
817-18, 135 S. Ct. 2652, 192 L. Ed. 2d 704 (2015) ("Nothing in [the Elections] Clause
instructs, nor has this Court ever held, that a state legislature may prescribe regulations on
the time, place, and manner of holding federal elections in defiance of provisions of the
State's constitution."). In fact, the Supreme Court's recent decision in Rucho expressly
contemplates state court review of congressional reapportionment schemes for
compliance with state law. 139 S. Ct. at 2507 (in a congressional redistricting challenge,
the Court declined to find that partisan gerrymandering violated the U.S. Constitution,
but noted that "state statutes and state constitutions can provide standards and guidance
for state courts to apply").
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The Attorney General points us to a few recent statements of skepticism from
individual Supreme Court justices toward this body of law. In 2021, the Supreme Court
denied a petition for certiorari in Republican Party of Pennsylvania v. Degraffenreid, 592
U.S. ___, 141 S. Ct. 732, 209 L. Ed. 2d 164 (2021). The decision resulted in two
dissenting opinions. Justice Thomas expressed that "petitioners presented a strong
argument that the Pennsylvania Supreme Court's decision violated the Constitution by
overriding 'the clearly expressed intent of the legislature'" because "the Federal
Constitution, not state constitutions, gives state legislatures authority to regulate federal
elections." 141 S. Ct. at 733 (Thomas, J., dissenting). Justice Alito, joined by Justice
Gorsuch, pointed out that the Elections Clause—which confers on state legislatures the
authority to make rules governing federal elections—"would be meaningless if a state
court could override the rules adopted by the legislature simply by claiming that a state
constitutional provision gave the courts the authority to make whatever rules it thought
appropriate for the conduct of a fair election." 141 S. Ct. at 738 (Alito, J., dissenting).
The following year, Justice Alito again dissented from the denial of an application for
stay, joined by Justices Thomas and Gorsuch. Moore v. Harper, 595 U.S. ____, 142 S.
Ct. 1089, 212 L. Ed. 2d 247 (2022) (Alito, J., dissenting). He expressed similar concern
with the growing issue over the proper interpretation of the Elections Clause. Justice
Kavanaugh agreed with Justice Alito's position that the Court should review the Elections
Clause issue. 142 S. Ct. 1089 (Kavanaugh, J., concurring).
But these statements are not controlling law—the justices making them do not
even purport to make this claim. And we cannot accept the Attorney General's invitation
to ground our rulings on speculation concerning the future direction of Supreme Court
jurisprudence. Instead, we are bound to follow United States Supreme Court precedent on
questions of federal law. See Arizona v. Evans, 514 U.S. 1, 8-9, 115 S. Ct. 1185, 131 L.
Ed. 2d 34 (1995) ("[S]tate courts . . . are not free from the final authority of" the Supreme
Court when interpreting the U.S. Constitution); State v. Tatro, 310 Kan. 263, 272, 445
17
P.3d 173 (2019) ("[T]his court must follow the United States Supreme Court's
interpretation of the United States Constitution."). We therefore conclude that we are not
jurisdictionally barred from reviewing reapportionment legislation for compliance with
the Kansas Constitution.
II. THE GOVERNING LAW
1. Anti-gerrymandering claims sound in equal protection
The gravamen of plaintiffs' claims sound in equal protection. While the other
provisions of the Kansas Constitution relied upon by the plaintiffs and the district court—
Kan. Const. Bill of Rights, §§ 1, 3, 11, 20; art. 5, § 1—protect vital rights, they do not
provide an independent basis for challenging the drawing of district lines.
Equal protection is at the heart of both partisan and racial gerrymandering or vote
dilution claims. See League of United Latin American Citizens v. Perry, 548 U.S. 399,
413-14, 126 S. Ct. 2594, 165 L. Ed. 2d 609 (2006) (LULAC) (federal equal protection
challenge to congressional redistricting map as unconstitutional partisan gerrymander);
Gill v. Whitford, 585 U.S. ___, 138 S. Ct. 1916, 1925-26, 201 L. Ed. 2d 313 (2018)
(same, despite allegations of violations of federal rights to free speech); Rucho, 139 S. Ct.
at 2491 (same, despite allegations of violations of the Elections Clause, First
Amendment, and Article I); Shaw v. Reno, 509 U.S. 630, 642, 113 S. Ct. 2816, 125 L.
Ed. 2d 511 (1993) (federal equal protection challenge to congressional redistricting map
as unconstitutional racial gerrymander); Miller v. Johnson, 515 U.S. 900, 903-04, 115 S.
Ct. 2475, 132 L. Ed. 2d 762 (1995) (same).
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Throughout this litigation, plaintiffs and the district court have attempted to
decorate and enhance their claims with various citations to rights found in other
provisions in the Kansas Constitution, including the right to vote, and rights to free
speech and association. Kan. Const. Bill of Rights, §§ 1, 3, 11, 20; art. 5, § 1. Plaintiffs
and the district court also recite "procedural defects" in the process of drafting Sub. SB
355—including allegations that the listening tour was simply a box-checking exercise;
Ad Astra 2 was adopted with unseemly rapidity; Ad Astra 2 was created in secret by
Republicans; and the Legislature ignored the Guidelines. These procedural claims echo
the concerns raised in In re Validity of Substitute Senate Bill 563, 315 Kan. ___ (2022)
(No. 125,083 this day decided). As we determined there, however, such complaints do
not rise to the level of constitutional objections. Therefore, the basis of each of plaintiffs'
claims remains foundationally grounded in equal protection guarantees.
The district court began with a discussion of plaintiffs' equal protection claims
under sections 1 and 2 of the Kansas Constitution Bill of Rights, stating that "partisan
gerrymandering deprives voters of 'equal power and influence in the making of laws
which govern'" them and asserting that the "goal of partisan gerrymandering is to
eliminate the people's authority over government by giving different voters vastly
unequal political power." (Emphases added.) The court then turned to the right to vote
under Article 5, section 1, framing it in equal protection terms. It explicitly styled its
analysis under equal protection, stating that "the right to vote is secured by Sections 1 and
2 of the Kansas Bill of Rights and by Article 5, Section 1 . . . ." (Emphasis added.) The
court relied on sections 1 and 2 of the Kansas Constitution Bill of Rights in defining the
right to vote as the right to have "'equal legislative representation.'"
Similarly, the lower court conflated the rights to free speech and assembly with the
right to equal protection. First the district court claimed that partisan gerrymandering
singles out a "specific class" of voters for "disfavored treatment." Then, the district court
19
held that "[w]hen the state engages in gerrymandering to negate that party's power, it has
the effect of 'debilitat[ing]' the disfavored party and 'weaken[ing] its ability to carry out
its core functions and purposes.'" (Emphasis added.) This analysis is again steeped in
equal protection principles.
At bottom, plaintiffs assert a variety of constitutional rights but the sole
mechanism relied on for judicial enforcement of those rights is the constitutional
guarantee of equal protection—a fact the district court effectively understood. Any line
drawing, even one that violates equal protection guarantees, does not infringe on a stand-
alone right to vote, the right to free speech, or the right to peaceful assembly. See Rucho,
139 S. Ct. at 2504 ("[T]here are no restrictions on speech, association, or any other First
Amendment activities in the districting plans at issue. The plaintiffs are free to engage in
those activities no matter what the effect of a plan may be on their district."); see also
Harper v. Hall, 380 N.C. 317, 448, 868 S.E.2d 499 (2022) (Newby, C.J., dissenting)
("The fundamental right to vote on equal terms simply means that each vote should have
the same weight. . . . [P]artisan gerrymandering has no significant impact upon the right
to vote on equal terms under the one-person, one-vote standard. . . . Partisan
gerrymandering plainly does not place any restriction upon the espousal of a particular
viewpoint."), petition for cert. docketed March 21, 2022.
2. Section 2 of the Kansas Constitution Bill of Rights is the textual grounding
and location of our Constitution's guarantee of equal protection to all citizens
Traditionally we have held that under the Kansas Constitution Bill of Rights,
sections 1 and 2 offer the same guarantees of due process and equal protection as
provided in the Fourteenth Amendment of the United States Constitution. Farley v.
Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987) (Sections 1 and 2 of the Kansas
Constitution Bill of Rights "are given much the same effect as the clauses of the
Fourteenth Amendment relating to due process and equal protection of the law.").
20
At times our court has attempted to distinguish between the two sections as providing
equal protection for "individual rights" (Section 1) and "political rights" (Section 2). See
State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005) ("Section 1 applies in cases . . .
when an equal protection challenge involves individual rights."); Atchison Street Rly. Co.
v. Mo. Pac. Rly. Co., 31 Kan. 660, Syl. ¶ 3, 3 P. 284 (1884) ("Section 2 is devoted to
matters of a political nature.").
We have recently clarified that Kansas' section 1 has no textual counterpart in the
U.S. Constitution and therefore has its own independent meaning and effect. See Hodes
& Nauser, MDs v. Schmidt, 309 Kan. 610, 624, 440 P.3d 461 (2019) ("[T]his side-by-side
comparison reveals, section 1 contains the following words not found in the Fourteenth
Amendment: 'All men are possessed of equal and inalienable natural rights.' In fact, no
provision of the United States Constitution uses the term 'natural rights' . . . . "); 309 Kan.
at 688 (Biles, J., concurring) ("As both the majority and dissent point out, section 1 of the
Kansas Constitution Bill of Rights differs from any federal counterpart . . . ."); 309 Kan.
at 763 (Stegall, J., dissenting) (Recognizing section 1 provides unique protections
different from the federal Constitution: "[o]f course, the language of the Declaration
does not carry 'the force of organic law' in the federal Constitution as it does in Kansas.").
After our decision in Hodes (giving a substantive rights effect to section 1), it is
clear that the textual grounding of equal protection guarantees contained in the Kansas
Constitution Bill of Rights is firmly rooted in the language of section 2, which states:
"All political power is inherent in the people, and all free governments are founded on
their authority, and are instituted for their equal protection and benefit. No special
privileges or immunities shall ever be granted by the legislature, which may not be
altered, revoked or repealed by the same body; and this power shall be exercised by no
other tribunal or agency." Kan. Const. Bill of Rights, § 2.
21
Even though Hodes changed the way in which we interpret section 1, it has not
changed our historical and fundamental interpretation of the scope of equal protection
found in section 2. That is to say, section 2 is "given much the same effect as the clauses
of the Fourteenth Amendment relating to due process and equal protection of the law."
See Farley, 241 Kan. at 667; State ex rel. Tomasic v. Kansas City, Kansas Port Authority,
230 Kan. 404, 426, 636 P.2d 760 (1981); State v. Wilson, 101 Kan. 789, 795-96, 168 P.
679 (1917). Put even more clearly, the equal protection guarantees found in section 2 are
coextensive with the equal protection guarantees afforded under the Fourteenth
Amendment to the United States Constitution. Compare U.S. Const. amend. XIV, § 1
("No State shall make or enforce any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws."); with Kan. Const. Bill of Rights § 2 ("[A]ll
free governments are . . . instituted for [the people's] equal protection and benefit.").
Therefore, Kansas courts shall be guided by United States Supreme Court precedent
interpreting and applying the equal protection guarantees of the Fourteenth Amendment
of the federal Constitution when we are called upon to interpret and apply the coextensive
equal protection guarantees of section 2 of the Kansas Constitution Bill of Rights.
III. PLAINTIFFS' PARTISAN GERRYMANDERING CLAIMS
1. The political question doctrine
In addressing plaintiffs' claim that Ad Astra 2 is an impermissible partisan
gerrymander, we are confronted first with what has come to be known as the "political
question doctrine." This legal rule guiding judicial decision-making is nearly as old as the
Republic, going all the way "back to the great case of Marbury v. Madison." § 15 "Case
or Controversy"—Political Questions, 20 Fed. Prac. & Proc. Deskbook § 15 (2d ed.).
22
There, Chief Justice John Marshall "expressed the view that the courts will not
entertain political questions even though the questions involve actual controversies." § 15
"Case or Controversy"—Political Questions, 20 Fed. Prac. & Proc. Deskbook § 15. The
Court in Marbury held that the executive branch (and by extension, the legislative
branch) is vested "with certain important political powers" and those branches are
accountable only to their "country"—that is the voters—and to their "own conscience"
because the "subjects are political." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66,
2 L. Ed. 60 (1803).
As the political question doctrine developed, it became clear that in certain
circumstances a respect for the coequal and coordinate executive and legislative branches
of government demanded that the judicial branch admit itself not competent to rule on
matters purely political. That is, the "political question doctrine excludes from judicial
review those controversies which revolve around policy choices and value
determinations" that are inextricable from the exercise of political discretion vested in
the political branches of government. 16 C.J.S. Constitutional Law § 392.
Judges called on to determine when the political question doctrine is implicated
must ask themselves—among other things—whether the controversy is capable of
resolution within the competency of the judicial branch. That is, do the traditional tools
of judging—such as clear, neutral, and "judicially discoverable and manageable
standards"—exist as a compass against which to measure the true north of any
controversy? Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).
Or, would judges be left to simply substitute their own "initial policy determination" for
that of the other branches? 369 U.S. at 217.
23
If resolving a controversy is outside the scope of the competence of the judiciary,
it is said to be "nonjusticiable"—that is, it is a matter committed by the structure of our
Constitution to the legislative or executive branches of government. And these branches
are ultimately accountable both to the voters and their own conscience. And while
common sense and history may not be able to speak to the effect of conscience on
political decision-makers, democratic accountability wielded by voters is woven into the
very fabric of our government and will—undoubtedly—have its say in the matter.
This outcome is not an unfortunate accident or a mistake in our constitutional
structure, but rather "a consequence of the separation of powers among the legislative,
executive, and judicial branches." Gannon v. State, 298 Kan. 1107, 1119, 1136-37, 319
P.3d 1196 (2014). And this very separation of powers is one of the surest timbers
guaranteeing that the house of liberty stands firm and lasts across the centuries amid the
swirling winds of any particular political issue du jour.
2. Partisanship in district line drawing is permissible
Plaintiffs do suggest the application of a clear standard to this dispute. They simply
claim that partisan gerrymandering is verboten under Kansas law. That is, they claim that
any consideration by the Legislature of partisan factors in deciding where to draw district
lines is offensive to constitutional principles. They ask Kansas courts to adopt a bright
line standard of zero tolerance and mandate that only politically neutral factors be used
by the Legislature. And the district court agreed, holding that the Kansas Constitution
"prohibit[s] partisan gerrymandering."
The dissent takes issue with this characterization. While ultimately, how we
characterize plaintiffs' political gerrymandering claims does not impact our analysis,
it is helpful to understand exactly why such a bright line rule is attractive. In fact, at oral
24
argument, counsel for the Frick plaintiffs defined "political gerrymandering" as any
line drawing "with party in mind." In response to the question, "How is partisan
gerrymandering a legitimate government function?" counsel for plaintiffs responded,
"I don't think it is legitimate. . . .To say that it's gone on for a long time and it seems
inevitable doesn't mean it's legitimate at all. . . . I don't think that partisan gerrymandering
has a legitimate interest."
If this was the law in Kansas, resolving claims of partisan gerrymandering would
indeed be justiciable. A bright line prohibition is certainly a judicially manageable
standard. But this has never been the law in Kansas, and in reaching its conclusion the
district court completely ignored our large body of caselaw on this subject. For we have
regularly and repeatedly held that the Legislature is constitutionally permitted to consider
partisanship when drawing district lines. And this rule is consistent with longstanding
United States Supreme Court precedent.
Over four decades ago we wrote: "'Politics and political considerations are
inseparable from districting and apportionment.'" In re House Bill No. 2620, 225 Kan.
827, 840, 595 P.2d 334 (1979) (quoting Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.
Ct. 2321, 37 L. Ed. 2d 298 [1973]). We have repeatedly recognized the reality that the
"'political profile of a State, its party registration, and voting records are available
precinct by precinct, ward by ward. . . . [I]t requires no special genius to recognize the
political consequences of drawing a district line along one street rather than another.'"
In re House Bill No. 2620, 225 Kan. at 840 (quoting Gaffney, 412 U.S. at 753).
Considering these hard political truths inherent in the redistricting process, we reached
the inescapable conclusion that the "'reality is that districting inevitably has and is
intended to have substantial political consequences.'" (Emphasis added.) In re House Bill
No. 2620, 225 Kan. at 840 (quoting Gaffney, 412 U.S. at 753). The district court cannot
write these hard truths out of existence with the fiat power of its judicial pen. Our
25
precedent (and prudent judgment) counsels a more modest approach to questions that
touch the core constitutional principle of separation of powers and the ongoing dictate
that the coordinate departments of government accord one another the due and proper
respect expected and owed under our unique constitutional arrangements.
Given this, if the redistricting process is intended to have "substantial political
consequences" it is no surprise that our court has consistently rejected pleas to establish a
bright line prohibition on politics in the redistricting process. In re 2002 Substitute for
Senate Bill 256, 273 Kan. 731, 734, 45 P.3d 855 (2002). For example, we have described
the legislative goal of "safely retaining seats for the political parties" as a "legitimate
political goal." 2002 Substitute for House Bill 2625, 273 Kan. 715, 722, 44 P.3d 1266(2002). In 1989, we rejected the claim that legislatively drawn lines were unlawful
because "political considerations prevailed over stated apportionment guidelines" on the
grounds that "any plan would . . . have adverse consequences for incumbents who are
pitted against each other." In re Substitute for House Bill No. 2492, 245 Kan. 118, 128,
775 P.2d 663 (1989). In yet another redistricting case, we plainly held that objections to
legislative line drawing on the mere assertion that "there was partisan political
gerrymandering in redistricting" could never "reveal a fatal constitutional flaw" without
more. In re Senate Bill No. 220, 225 Kan. 628, 637, 593 P.2d 1 (1979).
The United States Supreme Court, too, has never suggested partisanship is
unlawful if it touches the legislative redistricting process. In fact, the opposite. In Vieth
v. Jubelirer the Court wrote the United States Constitution "clearly contemplates
districting by political entities" and the process "unsurprisingly . . . turns out to be root-
and-branch a matter of politics." 541 U.S. 267, 285-86, 124 S. Ct. 1769, 158 L. Ed. 2d
546 (2004). As such, "partisan districting is a lawful and common practice [which]
means that there is almost always room for an election-impeding lawsuit contending that
26
partisan advantage was the predominant motivation." (Emphasis added.) 541 U.S. at 285-
86. The operative principle is clear.
And while the plurality holding of Vieth (that partisan gerrymandering claims are
nonjusticiable) did not gain majority support on the Court until 2019 in Rucho, there has
long been widespread agreement among justices across the spectrum that partisan factors
are legitimate considerations in the districting process. For example, in dissent in Vieth,
Justice Stephen Breyer wrote that using "purely political boundary-drawing factors" can
"find justification in . . . desirable democratic ends" even though it may be "harmful to
the members of one party." 541 U.S. at 360 (Breyer, J., dissenting).
This principle is commonplace in the United States Supreme Court's redistricting
jurisprudence. "We have never denied that apportionment is a political process, or that
state legislatures could pursue legitimate secondary objectives as long as those objectives
were consistent with a good-faith effort to achieve population equality at the same time."
Karcher v. Daggett, 462 U.S. 725, 739, 103 S. Ct. 2653, 77 L. Ed. 2d 133 (1983). In a
decision written by Justice Elena Kagan the Court described "partisan advantage" as a
legitimate consideration in district line drawing on an equal footing with other traditional
considerations such as "compactness" and "respect for political subdivisions." Cooper v.
Harris, 581 U.S. ____, 137 S. Ct. 1455, 1464, 197 L. Ed. 2d 837 (2017); see also Easley
v. Cromartie, 532 U.S. 234, 239, 121 S. Ct. 1452, 149 L. Ed. 2d 430 (2001) (recognizing
that "the creation of a safe Democratic seat" was a "constitutional political objective");
Gaffney, 412 U.S. at 753-54 (legislatures may validly "work with . . . political . . . data"
and may "seek . . . to achieve the political or other ends of the State, its constituents, and
its officeholders").
We need not belabor the point.
27
3. Claims of excessive partisan gerrymandering are nonjusticiable in Kansas
Given that the Legislature may appropriately and lawfully consider partisan
factors in redistricting, at the heart of a claim of partisan gerrymandering is not merely
that partisan factors were used, but rather that they were used "too much." The lower
court at one point appears to acknowledge this by quoting our prior caselaw declining to
find excessive partisan gerrymandering in any previous case. The district court plausibly
drew the lesson from these decisions that we had reached the "merits" of older partisan
gerrymandering claims. But this overreads those decisions. In fact, our predecessors
never actually had to ask the crucial question—how much is too much? And are there any
manageable and neutral judicial standards by which judges can decide that question
without resort to our own partisan biases?
These are not new questions for courts and judges. In LULAC, the Court put the
matter succinctly when it described the plaintiff's insurmountable problem in trying to
articulate "a standard for deciding how much partisan dominance is too much."
(Emphasis added.) 548 U.S. at 420. This is precisely the problem today's plaintiffs cannot
overcome. This is because a "permissible intent—securing partisan advantage—does not
become constitutionally impermissible . . . when that permissible intent 'predominates.'"
Rucho, 139 S. Ct. at 2502-03.
Essentially, the Rucho Court struggled to know whether there can ever be "too
much" of a legitimate legislative purpose in the process of state law-making. Its answer,
in sum, was—maybe, but without codified law to guide judges in knowing when too
much partisanship becomes so unfair as to offend constitutional principles, the question
cannot be answered. In the parlance of justiciability, the question presents no "'clear,
manageable and politically neutral'" judicial standard. 139 S. Ct. at 2500.
28
The Court explained further that:
"[I]t is not even clear what fairness looks like in this context. There is a large measure of
'unfairness' in any winner-take-all system. Fairness may mean a greater number of
competitive districts. Such a claim seeks to undo packing and cracking so that supporters
of the disadvantaged party have a better shot at electing their preferred candidates. But
making as many districts as possible more competitive could be a recipe for disaster for
the disadvantaged party. As Justice White has pointed out, '[i]f all or most of the districts
are competitive . . . even a narrow statewide preference for either party would produce an
overwhelming majority for the winning party in the state legislature.'
"On the other hand, perhaps the ultimate objective of a 'fairer' share of seats in
the congressional delegation is most readily achieved by yielding to the gravitational pull
of proportionality and engaging in cracking and packing, to ensure each party its
'appropriate' share of 'safe' seats. Such an approach, however, comes at the expense of
competitive districts and of individuals in districts allocated to the opposing party.
"Or perhaps fairness should be measured by adherence to 'traditional' districting
criteria, such as maintaining political subdivisions, keeping communities of interest
together, and protecting incumbents. But protecting incumbents, for example, enshrines a
particular partisan distribution. And the 'natural political geography' of a State—such as
the fact that urban electoral districts are often dominated by one political party—can
itself lead to inherently packed districts. As Justice Kennedy has explained, traditional
criteria such as compactness and contiguity 'cannot promise political neutrality when
used as the basis for relief. Instead, it seems, a decision under these standards would
unavoidably have significant political effect, whether intended or not.'
"Deciding among just these different visions of fairness (you can imagine many
others) poses basic questions that are political, not legal. There are no legal standards
discernible in the Constitution for making such judgments, let alone limited and precise
standards that are clear, manageable, and politically neutral. Any judicial decision on
what is 'fair' in this context would be an 'unmoored determination' of the sort
29
characteristic of a political question beyond the competence of the federal courts.
[Citations omitted.]" 139 S. Ct. at 2500.
We find the reasoning of Rucho persuasive and expressly adopt it here. But that
does not end the inquiry at the state level.
Rucho declared that it "is vital in such circumstances that the Court act only in
accord with especially clear standards . . . [because] '[w]ith uncertain limits, intervening
courts—even when proceeding with best intentions—would risk assuming political, not
legal, responsibility for a process that often produces ill will and distrust.'" 139 S. Ct. at
2498. And while Rucho could discern no such "especially clear standards" in federal law,
the Court left open the possibility that such standards might exist under state law. As
such, Rucho held that while claims of political gerrymandering were nonjusticiable
political questions at the federal level, such claims may be justiciable at the state level.
We agree with the Court's characterization of its holding—that it "does not
condone excessive partisan gerrymandering. Nor does our conclusion condemn
complaints about districting to echo into a void." 139 S. Ct. at 2507. This is because
states are free to adopt clear standards expressly setting limits on partisan
gerrymandering. Such clear standards can, the Court readily acknowledged, provide
courts with the necessary tools to adjudicate claims of excessive partisan gerrymandering.
The Rucho court pointed to Florida as a good example: "In 2015, the Supreme Court of
Florida struck down that State's congressional districting plan as a violation of the Fair
Districts Amendment to the Florida Constitution." 139 S. Ct. at 2507. The Court then
noted that "[t]he dissent wonders why we can't do the same. The answer is that there is no
'Fair Districts Amendment' to the Federal Constitution. Provisions in state statutes and
state constitutions can provide standards and guidance for state courts to apply."
(Emphasis added.) 139 S. Ct. at 2507.
30
And that brings us squarely to the question we must now answer: Are claims of
excessive partisan gerrymandering justiciable under the Kansas Constitution? Whether a
claim is nonjusticiable because it may be a political question is a question of law over
which we exercise unlimited review. Gannon, 298 Kan. at 1118, 1136.
We described Kansas' political question doctrine in Gannon, 298 Kan. at 1119,
1136-37. Gannon explained that Article II, Section 2 of the United States Constitution
limits the judicial power to "Cases" or "Controversies."
"But because Article 3 of the Kansas Constitution does not include any 'case' or
'controversy' language, our case-or-controversy requirement stems from the separation of
powers doctrine embodied in the Kansas constitutional framework. That doctrine
recognizes that of the three departments or branches of government, '[g]enerally
speaking, the legislative power is the power to make, amend, or repeal laws; the
executive power is the power to enforce the laws, and the judicial power is the power to
interpret and apply the laws in actual controversies.' (Emphasis added.) And Kansas, not
federal, law determines the existence of a case or controversy, i.e., justiciability. But this
court is not prohibited from considering federal law when analyzing justiciability.
"Under the Kansas case-or-controversy requirement, courts require that
(a) parties have standing; (b) issues not be moot; (c) issues be ripe, having taken fixed
and final shape rather than remaining nebulous and contingent; and (d) issues not present
a political question. . . .
....
"The United States Supreme Court has held: 'The nonjusticiability of a political
question is primarily a function of the separation of powers.' In other words, it is an
acknowledgment of 'the relationship between the judiciary and the other branches or
departments of government.' . . .
31
"As a result, '[t]he governments, both state and federal, are divided into three
departments, each of which is given the powers and functions appropriate to it. Thus a
dangerous concentration of power is avoided, and also the respective powers are assigned
to the department best fitted to exercise them.' As a consequence of the separation of
powers among the legislative, executive, and judicial branches, '[q]uestions in their
nature political . . . can never be made in this court.' [Citations omitted.]" (Emphasis
added.) 298 Kan. at 1119, 1137.
To determine if a political question exists, we look for the presence of one or more
of the six characteristics established by the United States Supreme Court in Baker, 369
U.S. at 217. We will dismiss a case as nonjusticiable because it is a political question
only if at least one of these characteristics "is inextricable from the case" before us. 369
U.S. at 217. Here we are concerned exclusively with the Rucho question—is there a
judicially discoverable and manageable standard in Kansas law that will guide a court in
resolving any claim of excessive partisan gerrymandering? And unlike in Florida and
other of our sister states that have codified limits on partisan gerrymandering, in Kansas
the answer (for now) must be no.
As explained above, the lower court here adopted the most extreme version of
plaintiffs' arguments—that any consideration of partisanship in district line drawing is
constitutionally prohibited—and in so doing avoided the justiciability problem. That legal
starting point is, however, demonstrably wrong.
Given this, the plaintiffs here have also proposed a variety of different metrics for
measuring "fairness" and answering the "how much is too much" question. But none of
these metrics have a foundation in Kansas law—either statutory enactment or
constitutional text. Plaintiffs denounce the Legislature's drawing of Ad Astra 2,
criticizing it as an "abomination"; as giving an "unfair and unearned advantage" to
Republicans; as being "devastating" for Lawrence Democrats; and because it
32
"disincentivizes Democratic voter mobilization, voter registration, voter turnout, [and]
fundraising," among other things. But as one author has put it, "[s]uch criticism assumes
too much. One cannot consider gerrymandering the antithesis of fair representation unless
one adopts some definition of fair representation in the first place." Moore, A "Frightful
Political Dragon" Indeed: Why Constitutional Challenges Cannot Subdue the
Gerrymander, 13 Harv. J.L. & Pub. Pol'y 949, 971 (1990). "Just as no configuration of
boundary lines can claim to be natural or inherently just, so too no seat-to-vote ratio can
claim to be natural or inherently just." 13 Harv. J.L. & Pub. Pol'y at 973.
In other words, before we can even begin evaluating whether an alleged partisan
gerrymander is unconstitutional, we would first need to determine what our baseline
definition of "fairness" is. And as the Rucho Court explained, deciding among different
proposed metrics of fairness poses questions that are political, not legal. Any decisions
made about redistricting—even if made by a neutral, independent court—would
inherently involve making an initial policy determination. See Gaffney, 412 U.S. at 753-
54 (noting that the Court has not "attempted the impossible task of extirpating politics
from what are the essentially political processes of the sovereign States").
Several other states have solved this problem by codifying such clear standards in
their laws. Some states have mandated at least some of the traditional districting criteria
for their mapmakers, and others have outright prohibited partisan favoritism in
redistricting. See, e.g., Ohio Const. art. 11, § 6 (directing the Ohio redistricting
commission to draw compact districts in a way that "correspond[s] closely to the
statewide preferences of the voters of Ohio" and avoid drawing plans "primarily to favor
or disfavor a political party"); Md. Const. art. III, § 4 (directing the Legislature to give
"[d]ue regard" to "boundaries of political subdivisions" when drawing districts); Mich.
Const. art. 4, § 6 (establishing an independent redistricting commission and requiring the
commission to abide by specific procedural steps as well as a set of substantive criteria,
33
including that the districts be "geographically contiguous"; "reflect the state's diverse
population and communities of interest"; "reflect consideration of county, city, and
township boundaries"; "be reasonably compact"; "not provide a disproportionate
advantage to any political party"; and not "favor or disfavor an incumbent"); Mo. Const.
art. III, § 3 ("Districts shall be [designed] in a manner that achieves both partisan fairness
and, secondarily, competitiveness . . . . 'Partisan fairness' means that parties shall be able
to translate their popular support into legislative representation with approximately equal
efficiency."); Iowa Code § 42.4(5) (2016) ("No district shall be drawn for the purpose of
favoring a political party, incumbent legislator or member of Congress, or other person or
group."); N.Y. Const. art. III, § 4 ("Districts shall not be drawn to discourage competition
or for the purpose of favoring or disfavoring incumbents or other particular candidates or
political parties. The commission shall consider the maintenance of cores of existing
districts, of pre-existing political subdivisions, including counties, cities, and towns, and
of communities of interest."); Colo. Const. art. V, § 44 ("The practice of political
gerrymandering, whereby congressional districts are purposefully drawn to favor one
political party or incumbent politician over another, must end.").
Kansas is substantially different from states having codified a constitutional duty
to prohibit partisan gerrymandering. And we likewise differ from still other states that—
lacking a clear constitutional mandate—have nevertheless discerned clear standards in
their case precedent. See Harper v. Hall, 380 N.C. 317, 364, 385, 389, 868 S.E.2d 499(2022) (discussing history of reapportionment litigation in North Carolina, noting N.C.
Const. art. II, §§ 3, 5 incorporates "traditional neutral" principles of reapportionment but
"does not include 'partisan advantage'" and the state's past gerrymandering cases provide
"ample guidance as to possible bright-line standards that could be used to distinguish
presumptively constitutional redistricting plans from partisan gerrymanders");
Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (recognizing vote dilution
theory in reapportionment dispute).
34
Unlike these states, Kansas has not adopted such standards. For this reason, we
cannot follow the decisions of other state supreme courts—such as the North Carolina
Supreme Court in Harper, a decision relied on heavily by plaintiffs and the lower court—
that have found their states to be within the Rucho exception of states with "statutes and
. . . constitutions" that "provide standards and guidance for state courts to apply." Rucho,
139 S. Ct. at 2507. In the absence of statutory or constitutional standards in Kansas—or
even standards in our case precedent—plaintiffs point to the substantive content of the
Guidelines and ask us to find standards of "fairness" there. But as already mentioned, the
Legislature has never adopted the Guidelines. They certainly are not found in our
Constitution. As such, the Guidelines are not "actual rules"—which is to say they are not
law. Apodaca v. Willmore, 306 Kan. 103, 136, 392 P.3d 529 (2017) (Stegall, J.,
dissenting) (describing the legal difference between guidelines and rules).
During one Senator's testimony at trial, he struggled to articulate how much
authority the Guidelines carried—he described them as "sort of a promise to the people."
At most, the Guidelines represent a "promise" made only by the House Committee on
Redistricting (the only formal committee of legislators to actually adopt them). And in
any event, internal operating procedures of the Legislature—and the Guidelines cannot
even go so far as to claim this status—are not binding authority that can give rise to a
legal challenge that courts can adjudicate. See Nixon v. United States, 506 U.S. 224, 236,
113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) (declining to "open[] the door of judicial review to
the procedures used by the Senate").
Considering all of this, we conclude that until such a time as the Legislature or the
people of Kansas choose to follow other states down the road of limiting partisanship in
the legislative process of drawing district lines, neither the Kansas Constitution, state
statutes, nor our existing body of caselaw supply judicially discoverable and manageable
35
standards "for making such judgments, let alone limited and precise standards that are
clear, manageable, and politically neutral." Rucho, 139 S. Ct. at 2500. We hold that the
question presented is nonjusticiable as a political question, at least until such a time as the
Legislature or the people of Kansas choose to codify such a standard into law.
IV. PLAINTIFFS' RACE-BASED CLAIMS
1. The district court applied the wrong legal standards to evaluate plaintiffs'
racial discrimination claims
In addition to claims of partisan gerrymandering, plaintiffs also alleged that the
Legislature engaged in unconstitutional race-based discrimination when it enacted Ad
Astra 2. Such claims brought under federal law arise under the Fourteenth Amendment's
equal protection guarantees. See, e.g., Cooper, 137 S. Ct. at 1463 ("The Equal Protection
Clause of the Fourteenth Amendment limits racial gerrymanders in legislative districting
plans."); Miller, 515 U.S. at 904 (the "central mandate" of the Equal Protection Clause of
the Fourteenth Amendment is "racial neutrality in governmental decisionmaking"); Shaw,
509 U.S. at 641 (recognizing that minority vote dilution "schemes violate the Fourteenth
Amendment when they are adopted with a discriminatory purpose and have the effect of
diluting minority voting strength").
As we have already explained, we will adhere to equal protection precedent from
the United States Supreme Court when applying the coextensive equal protection
guarantees found in section 2 of the Kansas Constitution Bill of Rights. The district court,
however, concluded that the federal equal protection standards were inapplicable because
"Kansas's guarantee of equal benefit 'affords separate, adequate, and greater rights than
the federal Constitution.'" In doing so, the district court erred because, as explained
above, the equal protection guarantees contained in section 2 are coextensive with the
same equal protection guarantees enshrined in the Fourteenth Amendment. The lower
36
court then compounded this legal error by crafting its own set of "five non-exclusive
factors"—unmoored from precedent—for examining racial gerrymandering and minority
voter dilution claims:
"(1) whether the redistricting plan has a more negative effect on minority voters than
white voters, (2) whether there were departures from the normal legislative process,
(3) the events leading up to the enactment, including whether aspects of the legislative
process impacted minority voters' participation, (4) whether the plan substantively
departed from prior plans as it relates to minority voters, and (5) any historical evidence
of discrimination that bears on the determination of intent."
In support of this newly articulated test, the district court provided just one citation
to Jones v. Kansas State University, 279 Kan. 128, 145, 106 P.3d 10 (2005). But Jones
has no connection to redistricting, tests for racial discrimination, discriminatory intent, or
the like. The page in Jones the district court cited to is merely a recitation of our familiar
"fundamental rule" governing statutory interpretation "that the intent of the legislature
governs if that intent can be ascertained." The district court erred in departing from the
well-established and robust legal standards that abound in United States Supreme Court
caselaw governing race-based claims made in redistricting challenges.
2. Section 2 protects against two distinct types of race-based decision-making
by the Legislature in drawing district lines
Government decision-making on the basis of race is antithetical to the principles
of equal protection enshrined in both the Fourteenth Amendment and in section 2 of the
Kansas Constitution Bill of Rights. The equal protection guarantees found in section 2,
like the Fourteenth Amendment, protect against two distinct kinds of racial
discrimination in the drawing of district lines. First, section 2 protects against racial
gerrymandering which occurs when a legislative body uses race as the predominant factor
in choosing where to draw the lines. Second, section 2 protects against targeted minority
37
voter dilution which occurs when a legislative body invidiously discriminates against a
minority population to minimize or cancel out the potential power of the minority group's
collective vote. The United States Supreme Court has set forth explicit legal tests to be
applied to each of these distinct claims, and we expressly adopt those same tests to apply
when those challenges are made under section 2 of the Kansas Constitution Bill of
Rights.
First, a plaintiff bringing a racial gerrymandering claim must demonstrate at the
outset "that 'race was the predominant factor motivating the legislature's decision to place
a significant number of voters within or without a particular district.'" Cooper, 137 S. Ct.
at 1463. Determining which redistricting factor predominates presents a "most delicate
task" for courts, Miller, 515 U.S. at 905, because "crucially, political and racial reasons
are capable of yielding similar oddities in a district's boundaries. That is because, of
course, 'racial identification is highly correlated with political affiliation.'" Cooper, 137 S.
Ct. at 1473. As the Supreme Court has expressly recognized:
"The distinction between being aware of racial considerations and being motivated by
them may be difficult to make. This evidentiary difficulty, together with the sensitive
nature of redistricting and the presumption of good faith that must be accorded legislative
enactments, requires courts to exercise extraordinary caution in adjudicating claims that a
State has drawn district lines on the basis of race." Miller, 515 U.S. at 916.
A plaintiff can cross this threshold by showing that the Legislature subordinated
lawful, race-neutral districting factors—such as compactness, respect for political
subdivisions, and partisan advantage—to unlawful racial considerations. Cooper, 137 S.
Ct. at 1463-64; see also Bush v. Vera, 517 U.S. 952, 971-73, 116 S. Ct. 1941, 135 L. Ed.
2d 248 (1996) (finding that the "extreme and bizarre" shape, paired with "overwhelming
evidence that that shape was essentially dictated by racial considerations of one form or
another" "reveal that political considerations were subordinated to racial classification"
38
because they were "unexplainable in terms other than race"); Bethune-Hill v. Virginia
State Bd. of Elections, 580 U.S. ___, 137 S. Ct. 788, 798, 197 L. Ed. 2d 85 (2017)
("'[T]he constitutional violation' in racial gerrymandering cases stems from the 'racial
purpose of state action, not its stark manifestation.' The Equal Protection Clause does not
prohibit misshapen districts. It prohibits unjustified racial classifications." [Citation
omitted.]); Shaw, 509 U.S. at 643 ("Classifications of citizens solely on the basis of race
'are by their very nature odious to a free people whose institutions are founded upon the
doctrine of equality.'").
Plaintiffs "may make the required showing through 'direct evidence' of legislative
intent, 'circumstantial evidence of a district's shape and demographics,' or a mix of both."
Cooper, 137 S. Ct. at 1463-64; see Hunt v. Cromartie, 526 U.S. 541, 549-50, 119 S. Ct.
1545, 143 L. Ed. 2d 731 (1999).
Once plaintiffs have established that race was the predominant factor in how the
lines were drawn, the burden shifts to the State to demonstrate that the legislation is
narrowly tailored to achieve a compelling interest. Cooper, 137 S. Ct. at 1464; Bethune-
Hill, 137 S. Ct. at 800-01; Vera, 517 U.S. at 958, 962 ("Strict scrutiny does not apply
merely because redistricting is performed with consciousness of race. . . . For strict
scrutiny to apply, traditional districting criteria must be subordinated to race.").
Compliance with the federal Voting Rights Act may be a compelling state interest.
Cooper, 137 S. Ct. at 1459 ("This Court has long assumed that one compelling interest is
compliance with the Voting Rights Act of 1965 [VRA or Act]. When a State invokes the
VRA to justify race-based districting, it must show [to meet the 'narrow tailoring'
requirement] that it had 'good reasons' for concluding that the statute required its
action.").
39
Other evidence that the Court has considered probative and significant in applying
its "predominant factor" test has included direct testimony that racial quotas were set as
goals to be met by the legislative body. See Vera, 517 U.S. at 969-70 ([T]he "testimony
of state officials . . . affirmed that 'race was the primary consideration in the construction
of District 30.'"). The Court also often looks to the shapes of the districts to see if it is
"exceedingly obvious" that the drawing of the lines was a deliberate attempt to draw
minority groups in or out of the district. See Miller, 515 U.S. at 917 ("[T]he drawing of
narrow land bridges to incorporate within the district outlying appendages containing
nearly 80% of the district's total black population was a deliberate attempt to bring black
populations into the district."). But even a bizarre shape is not sufficient by itself; rather,
it is a relevant factor because "it may be persuasive circumstantial evidence that race for
its own sake, and not other districting principles, was the legislature's dominant and
controlling rationale." Bethune-Hill, 137 S. Ct. at 798. Therefore the Court, when
considering shape, has done so in conjunction with all other relevant factors to see if their
combination is "'unexplainable in terms other than race.'" Vera, 517 U.S. at 972.
Additional factors the Court has examined in making this inquiry have included
the racial densities in the population; whether testimony of state officials affirm that race
was the primary consideration in the construction of a district; if the districting software
used by the State provides only racial data at the block-by-block level; if there were
"bizarre district lines" which were "tailored perfectly to maximize minority population"
but were "far from the shape that would be necessary to maximize the Democratic vote"
in the district; if the State had compiled detailed racial data but made no similar attempts
to compile equivalent data regarding other communities; and if there were any conflicts
or inconsistencies between the enacted plan and traditional redistricting criteria. Miller,
515 U.S. at 917; Vera, 517 U.S. at 967-73; Bethune-Hill, 137 S. Ct. at 799.
40
The Court has emphasized that in considering this kind of evidence, courts should
examine whether "the legislature 'placed' race 'above traditional districting considerations
in determining which persons were placed in appropriately apportioned districts'"—or
"[i]n other words, if the legislature must place 1,000 or so additional voters in a particular
district in order to achieve an equal population goal, the 'predominance' question
concerns which voters the legislature decides to choose, and specifically whether the
legislature predominately uses race as opposed to other, 'traditional' factors when doing
so." Alabama Legislative Black Caucus v. Alabama, 575 U.S. 254, 273, 135 S. Ct. 1257,
191 L. Ed. 2d 314 (2015).
Second, a plaintiff may bring a minority voter dilution claim under section 2 of the
Kansas Constitution Bill of Rights. This occurs when a legislative body invidiously
discriminates against a minority population to minimize or cancel out the potential power
of the group's collective vote. Abbott v. Perez, 585 U.S. ____, 138 S. Ct. 2305, 2314, 201
L. Ed. 2d 714 (2018). The harm caused by vote dilution "arises from the particular
composition of the voter's own district, which causes his vote—having been packed or
cracked—to carry less weight than it would carry in another, hypothetical district."
Gill, 138 S. Ct. at 1931.
The evidentiary threshold for bringing a minority vote dilution claim in a single-
member district is necessarily high. Plaintiffs bringing such a claim must first show three
"threshold conditions": (1) the minority group is sufficiently large and geographically
compact to constitute a majority in a single member district; (2) that the group is
politically cohesive; and (3) there exists sufficient bloc voting by the white majority in
the new allegedly diluted districts to usually defeat the preferred candidate of the
politically cohesive minority bloc. Growe v. Emison, 507 U.S. 25, 39-40, 113 S. Ct. 1075,
41
122 L. Ed. 2d 388 (1993) (citing Gingles, 478 U.S. at 50-51). If a plaintiff fails to
establish these three points, "there neither has been a wrong nor can [there] be a remedy."
507 U.S. at 40-41.
If all three preconditions are established, the next step is to consider the "totality of
circumstances" to determine whether, as a result of the challenged plan, plaintiffs do not
have an equal opportunity to participate in the political process and to elect candidates of
their choice. LULAC, 548 U.S. at 425-26; see Gingles, 478 U.S. at 46; 2002 Substitute for
House Bill 2625, 273 Kan. at 720. Plaintiffs must establish that the totality of the
circumstances shows that they lack equal opportunity before they can prevail on a vote
dilution claim. Bartlett v. Strickland, 556 U.S. 1, 11-12, 24, 129 S. Ct. 1231, 173 L. Ed.
2d 173 (2009) ("[O]nly when a party has established the [three] requirements does a court
proceed to analyze whether a violation has occurred based on the totality of the
circumstances. . . . Majority-minority districts are only required if all three . . . factors are
met . . . .").
Evidence the Court has considered probative and significant in applying these
standards to a minority voter dilution claim has included the list of factors contained in
the Senate Report on the 1982 amendments to the Voting Rights Act, which includes
considering the (1) history of voting-related discrimination in the state; (2) the extent to
which voting in the elections of the state is racially polarized; (3) the extent to which the
state has used voting practices tending to enhance opportunity for discrimination against
the minority group; (4) the extent to which minority group members bear the effects of
past discrimination in areas such as education, employment, and health, which hinder
their ability to participate effectively in the political process; (5) the use of overt or subtle
racial appeals in political campaigns; and (6) the extent to which members of the minority
42
group have been elected to public office in the jurisdiction. LULAC, 548 U.S. at 426;
Johnson v. De Grandy, 512 U.S. 997, 1010 n.9, 114 S. Ct. 2647, 129 L. Ed. 2d 775(1994); Gingles, 478 U.S. at 36-38.
We note that while most vote dilution claims now arise in the context of the
federal Voting Rights Act, they are undergirded by the same equal protection principles
that preexist the VRA and simultaneously protect against unlawful minority vote dilution.
See Holder v. Hall, 512 U.S. 874, 893 n.1, 114 S. Ct. 2581, 129 L. Ed. 2d 687 (1994)
(Thomas, J., concurring) (explaining that "prior to the amendment of the Voting Rights
Act in 1982, [vote] dilution claims typically were brought under the Equal Protection
Clause. . . . The early development of our voting rights jurisprudence in those cases
provided the basis for our analysis of vote dilution under the amended § 2 in Thornburg
v. Gingles, 478 U.S. 30 [1986]."); see also McLoughlin, Section 2 of the Voting Rights
Act and City of Boerne: The Continuity, Proximity, and Trajectory of Vote-Dilution
Standards, 31 Vt. L. Rev. 39, 75-76 (2006) ("[A] strong conceptual link exists between
the constitutional and statutory standards because dilutive effect is understood as
essentially the same in both systems. Even if constitutional vote-dilution suits require
additional proof of intent, the relationship between Gingles, Rogers, and the 1982
Amendments indicates that the injury targeted by the statute is identical to the
constitutional injury with respect to the meaning of diminished clout in voting . . . . [T]he
Court has never had an unconstitutional vote-dilution case involving single-member
districts . . . [b]ut Gingles suggests that at minimum, its concept of diluted voting clout is
no different from what the Court would look for in examining discriminatory effects in a
constitutional vote-dilution case."); Pitts, Georgia v. Ashcroft: It's the End of Section 5
As We Know It (and I Feel Fine), 32 Pepp. L. Rev. 265, 310-11 (2005) ("[T]he Section 2
standard strongly resembles the constitutional standard for proving unconstitutional vote
dilution. . . . [T]he evidentiary factors considered under both the constitutional and
statutory standards are nearly, though by no means precisely, identical.").
43
The dissent contends the three "threshold conditions" required to show race-based
vote dilution are only a function of the Voting Rights Act and are unnecessary if an equal
protection vote dilution claim is made. We disagree. First, this understanding is at odds
with the Court's guidance in Growe. Second, we have found no decision in which a
federal appeals court has concluded that redistricting, "although not in violation of
section 2, unconstitutionally dilutes minority voting strength." Johnson v. DeSoto County
Bd. of Comm'rs, 204 F.3d 1335, 1344 (11th Cir. 2000). Thus, federal courts have
continued to apply the three "threshold conditions" required for a vote dilution claim
under the VRA to similar claims asserted under the Equal Protection Clause. 204 F.3d at
1344 ("[T]he Supreme Court, historically, has articulated the same general standard,
governing the proof of injury, in both section 2 and constitutional vote dilution cases.");
Lowery v. Deal, 850 F. Supp. 2d 1326, 1331-32 (N.D. Ga. 2012), aff'd on other grounds
sub nom. Lowery v. Governor of Georgia, 506 F. Appx. 885 (11th Cir. 2013)
(unpublished opinion); Martinez v. Bush, 234 F. Supp. 2d 1275, 1326 (S.D. Fla. 2002)
("[E]ven though Gingles did not involve an equal protection claim, the three factors were
derived by the Court from the principles set forth in the vote dilution cases brought under
the Equal Protection Clause. We therefore conclude that the three preconditions have
always been and remain elements of constitutional vote dilution claims."). If anything,
the dissent's analysis, and the authority it relies upon, suggests a vote dilution claim
asserted under the Equal Protection Clause requires a more rigorous showing than
required under the VRA because the Equal Protection Clause requires a showing of
discriminatory intent in addition to establishing the three "threshold conditions," while
the VRA does not. Lowery, 850 F. Supp. 2d at 1331. Because plaintiff's claims fail here
at the threshold, however, we need not engage the discussion of intent.
44
3. On this record, plaintiffs have not established the elements of their race-based
claims
Having established the clear elements plaintiffs must prove to prevail on their
racial gerrymandering and minority vote dilution claims under section 2, we turn to
evaluating the district court's findings of fact to determine whether plaintiffs have in fact
prevailed on their claims under either standard. We note here that it appears plaintiffs
have principally pursued a claim of unlawful minority vote dilution. Counsel for the
Alonzo plaintiffs explicitly acknowledged this at oral argument. Reviewing the record,
however, plaintiffs do also allege racial discrimination in the way the Legislature treated
minority communities in Douglas County and in our Native American communities.
Additionally, because of the way the district court decided plaintiffs' race-based claims
on standards unrelated to federal equal protection law, there is a lack of clarity
concerning which of plaintiffs' claims—precisely—is being addressed by the district
court's ruling. Because of this, giving plaintiffs the benefit of the doubt, we will review
the lower court's findings to determine whether they support either of the two kinds of
race-based claims that may be brought under section 2.
We review the findings of fact under the substantial competent evidence standard,
disregarding any conflicting evidence or other inferences that might be drawn from the
evidence. We exercise unlimited review over the conclusions of law based on those
findings. Gannon, 305 Kan. at 881. In this unique instance, however, where the district
court made findings of fact under a misperception of what the appropriate legal test
would be, it will come as no surprise that the findings of fact do not match those required
under the controlling legal frameworks. Even so, we will take the district court's findings
at face value rather than delve into their evidentiary support (or lack thereof) and simply
ask whether they are sufficient for the plaintiffs to have prevailed on their claims under
the correct legal standard.
45
a. Plaintiffs have not established a racial gerrymandering claim
The record below demonstrates that plaintiffs did not ask the district court to find
that the Legislature used race as the predominant factor in choosing where to draw the
lines. The district court, in turn, did not apply this standard to plaintiffs' claim of racial
gerrymandering. The district court—after erroneously holding that federal Fourteenth
Amendment standards did not apply in the context of section 2—declined to answer
whether intent is a required element of a racial discrimination claim under the Kansas
Constitution Bill of Rights, concluding instead that "vote dilution is intentional . . . even
in the absence of actual racial prejudice" "if the Legislature had as one objective the
dilution of minority voters."
As we have described, however, for plaintiffs to prevail on a claim of racial
gerrymandering, they must have shown that the Legislature used race as the predominant
factor in drawing districts. The Supreme Court has clearly stated that if the evidence
merely shows that the Legislature considered partisan factors "along with" race when it
drew the lines, this, without more, "says little or nothing about whether race played a
predominant role." Easley, 532 U.S. at 253.
Plaintiffs, like the district court, made much of the fact that partisan considerations
dominated the Legislature's map-drawing process, but failed to present any evidence that
race was the predominant factor guiding the Legislature's decisions. The district court
expressly adopted conclusions from plaintiffs' expert witnesses that "partisan intent
predominated" in the drawing of the districts. The district court found that the
"Legislature acted with discriminatory intent," but did so only after crafting a test that
did not test for predominant intent at all. The court failed to conduct the appropriate
"'sensitive inquiry'" to assess whether plaintiffs "managed to disentangle race from
politics and prove that the former drove a district's lines." Cooper, 137 S. Ct. at 1473;
46
see also Easley, 532 U.S. at 245 ("A legislature trying to secure a safe Democratic seat is
interested in Democratic voting behavior. Hence, a legislature may, by placing reliable
Democratic precincts within a district without regard to race, end up with a district
containing more heavily African-American precincts, but the reasons would be political
rather than racial."); Shaw, 509 U.S. at 646 ("[T]he legislature always is aware of race
when it draws district lines, just as it is aware of age, economic status, religious and
political persuasion, and a variety of other demographic factors. That sort of race
consciousness does not lead inevitably to impermissible race discrimination. . . . [W]hen
members of a racial group live together in one community, a reapportionment plan that
concentrates members of the group in one district and excludes them from others may
reflect wholly legitimate purposes. The district lines may be drawn, for example, to
provide for compact districts of contiguous territory, or to maintain the integrity of
political subdivisions."); Cooper, 137 S. Ct. at 1490 (Alito, J., concurring) (pointing out
the "often-unstated danger where race and politics correlate: that the federal courts will
be transformed into weapons of political warfare. Unless courts 'exercise extraordinary
caution' in distinguishing race-based redistricting from politics-based redistricting, . . .
they will invite the losers in the redistricting process to seek to obtain in court what they
could not achieve in the political arena. If the majority party draws districts to favor
itself, the minority party can deny the majority its political victory by prevailing on a
racial gerrymandering claim. Even if the minority party loses in court, it can exact a
heavy price by using the judicial process to engage in political trench warfare for years
on end.").
The district court did not find that race was the predominant factor motivating the
Legislature's decision to place a significant number of voters inside or outside of a
particular district. We therefore conclude that on the record before us, plaintiffs have
failed to satisfy their burden to meet the legal elements required for a showing of racial
gerrymandering.
47
b. Plaintiffs have not established a minority vote dilution claim
Plaintiffs' claims of minority vote dilution fail at the very first step, because the
record below shows that they did not present evidence in support of—nor did the district
court find—that the minority group is sufficiently large and geographically compact to
constitute a majority in a single member district. The district court did not conduct this
analysis, and the numbers in the Ad Astra 2 map suggest that this first condition may
very well be impossible to meet. In fact, plaintiffs admit in their petition that "minority
voters constitute less than a majority of voters in current District 3" and require "the
support of a portion of white voters who cross over to support the minority-preferred
candidate."
The district court simply did not apply the proper test or make the requisite
findings of fact to satisfy the standards necessary to prove a claim of minority vote
dilution. The district court generally incorporated and credited plaintiffs' suggested
findings of fact. However, the district court made very few specific findings of fact of
its own to directly justify its holdings, instead simply summarizing plaintiffs' expert
testimony. In a similar scenario, the U.S. Supreme Court has concluded this type of fact-
finding was insufficient to support a claim for vote dilution:
"[P]laintiffs urge us to put more weight on the District Court's findings of packing and
fragmentation, allegedly accomplished by the way the State drew certain specific lines
. . . . The District Court, however, made no such finding. Indeed, the propositions the
court recites on this point are not even phrased as factual findings, but merely as
recitations of testimony offered by plaintiffs' expert witness. While the District Court
may well have credited the testimony, the court was apparently wary of adopting the
witness's conclusions as findings. But even if one imputed a greater significance to the
accounts of testimony, they would boil down to findings that several of [the] district lines
separate portions of Hispanic neighborhoods, while another district line draws several
48
Hispanic neighborhoods into a single district. This, however, would be to say only that
lines could have been drawn elsewhere, nothing more. But some dividing by district lines
and combining within them is virtually inevitable and befalls any population group of
substantial size." De Grandy, 512 U.S. at 1015-16.
Even if, as the Court contemplated in De Grandy, we "imputed a greater
significance to the accounts of testimony" and fully accept the district court's crediting of
one of plaintiffs' expert's analysis that Ad Astra 2 has a "dilutive effect on the ability of
minority voters to elect their preferred candidates," this statement skips several steps
along the analytical path. Had the district court conducted a proper inquiry, it may have
never even gotten that far in its analysis because the very first condition—which again,
requires the minority group to be sufficiently large and geographically compact to
constitute a majority in a single member district—very likely would have been fatal to the
plaintiffs' claims. See Growe, 507 U.S. at 40-41 ("[T]here neither has been a wrong nor
can [there] be a remedy" if plaintiffs fail to establish the three preconditions.).
Accordingly, we conclude that on the record before us, plaintiffs have failed to
satisfy their burden to meet the legal elements required for a showing of unlawful race-
based vote dilution.
CONCLUSION
The manner in which plaintiffs chose to litigate this case—and the district court's
willingness to follow them down the primrose path—has a great deal to do with our
decision today. Plaintiffs put their proverbial eggs in an uncertain and untested basket of
novel state-based claims, hoping to discover that the Kansas Constitution would prove
amenable. But the constitutional text and our longstanding historical precedent foreclose
those claims. In the future, should the people of Kansas choose to codify clear standards
limiting partisan gerrymandering, or should future plaintiffs be able to properly establish
49
the elements legally required to show unlawful racial discrimination in the redistricting
process, Kansas courthouse doors will be open. For now, the legal errors permeating the
lower court's decision compel us to reverse its judgment.
Reversed and injunction order is lifted.
***
ROSEN, J., concurring in part and dissenting in part: The dominant political party
in our Legislature recently reapportioned Kansas congressional districts in such a manner
as to dilute—or eliminate—the voting rights of racial minorities as well as to propel this
state's national political power toward a monolithic single-party system. The majority of
our court today gives its stamp of approval to this assault on the democratic system and
the constitutional backbone of our democracy. Because I cannot countenance the
subversion of the democratic process to create a one-party system of government in this
state and to suppress the collective voice of tens of thousands of voters, I dissent.
In turning a blind eye to this full-scale assault on democracy in Kansas, the
majority blithely ignores the plain language of this state's Constitution. The majority
upholds a legislative decision that does nothing to benefit the people or provide equal
protection to the citizens of this state, considerations our Constitution expressly demands.
Furthermore, the majority opinion undermines the very basis of legislative districting,
apportioning voting districts in a blatant attempt to homogenize the state. As the
Legislature has distorted and contorted the political map in order to monopolize the
position of one political party, the majority opinion distorts and contorts legal reasoning
and constitutional theory to uphold racial discrimination and political chicanery.
50
The precedent today's opinion sets threatens to institutionalize division of voting
districts on the basis of race, or of religion, or of gender, with no hope of constitutional
protection. The majority is thus complicit not only in the current power grab, it also
promises future legislatures that they may with impunity divide and subdivide voters'
interests to further the purposes of whichever party is in a position to seize absolute
control.
I do not reject the majority opinion out of sympathy for one party or another or for
one population or another. I reject it because it is constitutionally unsound. I fully join
Justice Biles in his concurring in part and dissenting in part opinion and his legal analysis
and his conclusion that Ad Astra 2 violates the Kansas Constitution. To that opinion, I
add one of my own so that I may highlight my fervent disagreement with the majority's
decision to tie the equal protection guarantees in section 2 of the Kansas Constitution Bill
of Rights to the federal Constitution.
Early in its opinion, the majority quickly and matter-of-factly pronounces that "the
equal protection guarantees found in section 2 are coextensive with the equal protection
guarantees afforded under the Fourteenth Amendment to the United States Constitution."
Slip op. at 22. With these few taps on a keyboard, the majority denies Kansans the very
thing our founders envisioned: a people's government that fervently guards the people's
equal benefit from and access to the law—regardless of what the narrower-in-scope
central power has to say about it. I will highlight the error in the majority's minimal
reasoning and explain why section 2 provides protections that are broader than those in
the Fourteenth Amendment.
Section 2 of the Kansas Constitution Bill of Rights is as follows:
"Political power; privileges. All political power is inherent in the people, and all
free governments are founded on their authority, and are instituted for their equal
51
protection and benefit. No special privileges or immunities shall ever be granted by the
legislature, which may not be altered, revoked or repealed by the same body; and this
power shall be exercised by no other tribunal or agency."
The relevant portion of the Fourteenth Amendment to the United States
Constitution is as follows:
"All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
The majority looks at these provisions and proclaims that the equal protection
guarantees found within are coextensive. To get to that epic conclusion, it relies on one
sentence offered in a 1917 Kansas case and repeated in a smattering of cases, each time
without even a hint of analysis. In State v. Wilson, 101 Kan. 789, 795-96, 168 P. 679(1917), this court unceremoniously noted that sections 1 and 2 of the Kansas Bill of
Rights are "given much the same effect as the clauses of the Fourteenth Amendment
relating to due process of law and equal protection." For this proposition, it cited to
Winters v. Myers, 92 Kan. 414, 140 P. 1033 (1914). But the court in Winters never held
that section 2 and the Fourteenth Amendment are given the same effect. Rather, it
observed that the Ohio Constitution has a provision with the same language as section 2
and that there is similar language in a clause of the Fourteenth Amendment. The court
then described caselaw from both jurisdictions, among others, before independently
addressing the equal protection issue before it. Winters, 92 Kan. at 421-28.
Nonetheless, the language in Wilson was repeated in cases in which parties
launched Fourteenth Amendment claims alone and when parties invoked the Kansas Bill
52
of Rights alongside a Fourteenth Amendment claim. See, e.g., State v. Limon, 280 Kan.
275, 283, 122 P.3d 22 (2005); State ex rel. Tomasic v. Kansas City, Kansas Port
Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981); Henry v. Bauder, 213 Kan. 751, 752-
53, 518 P.2d 362 (1974); Railroad and Light Co. v. Court of Industrial Relations, 113
Kan. 217, 228-29, 214 P. 797 (1923). Importantly, however, in none of these cases does it
appear the parties claimed that the Kansas Constitution Bill of Rights offers different or
broader protections than the Fourteenth Amendment. Thus, in none of these cases did the
court question whether Kansas affords separate protections and instead defaulted to the
status quo.
This practice was routine for the time. "For all practical purposes, independent
state constitutionalism did not exist before the 1970s." Friedman, Path Dependence and
the External Constraints on Independent State Constitutionalism, 115 Penn St. L. Rev.
783, 797 (2011). Commentors have theorized this was largely a result of "constitutional
universalism," or a "belief that all American constitutions are drawn from the same set of
universal principles of constitutional self-governance." Gardner, The Positivist
Revolution That Wasn't: Constitutional Universalism in the States, 4 Roger Williams
U.L. Rev. 109, 117 (1998). In the judicial context, this belief resulted in "a lack of
judicial attention to or discussion of the constitutional text, case authority, framers' intent,
or relevant history [and] indiscriminate borrowing from other jurisdictions . . . and from
the common law." 4 Roger Williams U.L. Rev. at 117. And later in the 20th century, sole
reliance on the Fourteenth Amendment became a strategic decision. "The U.S. Supreme
Court recognized many of the rights it did between the 1940s and the 1960s because
many state courts (and state legislatures and state governors) resisted protecting
individual rights, most notably in the South but hardly there alone." Sutton, Jeffery, J., 51
Imperfect Solutions: States and the Making of American Constitutional Law, 14 (2018).
Thus, litigants eschewed the advancement of any state constitutional claims to take
advantage of the federal rights expansion.
53
In the late 1970s, however, after a near-decade of continuous individual rights
recognition came to an end, an era of "independent state constitutionalism in the area of
individual rights and liberties came of age." 115 Penn St. L. Rev. at 798. An approach
coined "The New Judicial Federalism" took hold during this period, and marked a time
when state courts took a deeper look at their own constitutions and "interpreted their . . .
rights provisions to provide more protection than the national minimum standard
guaranteed by the Federal Constitution." Williams, Introduction: The Third Stage of the
New Judicial Federalism, 59 N.Y.U. Ann. Surv. Am. L. 211, 211 (2003). Justice William
Brennan recognized this as "'probably the most important development in constitutional
jurisprudence of our times.'" Williams, The New Judicial Federalism in Ohio: The First
Decade, 51 Clev. St. L. Rev. 415, 416 (2004) (quoting Justice William J. Brennan, Jr.,
Special Supplement, State Constitutional Law, NAT'L L.J., Sept. 29, 1986, at S1).
Our court appeared to follow this trend beginning in 1984 in Farley v. Engelken,
241 Kan. 663, 667, 740 P.2d 1058 (1987). Curiously, the majority here cites Farley as
supportive of its position not once, but twice. In Farley, this court considered an equal
protection challenge to legislation that implicated the right to a remedy for insured or
otherwise compensated medical malpractice plaintiffs but not other tort plaintiffs. True to
the majority's quotation, Farley initially repeats the resolution that section 2 and the
Fourteenth Amendment are "given much the same effect." 241 Kan. at 667. However,
later in its reasoning it clarifies "as hereinafter demonstrated, the Kansas Constitution
affords separate, adequate, and greater rights than the federal Constitution." (Emphasis
added.) 241 Kan. at 671. The court reached that conclusion by relying on earlier caselaw
that had applied a heightened standard to a similar equal protection challenge and by
observing that the right to a remedy is independently protected by the Kansas
Constitution, thus making it deserving of scrutiny higher than rational basis under the
Kansas Constitution. The court acknowledged that the "United States Supreme Court has
54
applied heightened scrutiny to very limited classifications," but explained "we are
interpreting the Kansas Constitution and thus are not bound by the supremacy clause of
the federal Constitution." 241 Kan. at 674.
The majority here conveniently avoids addressing this precedent-setting portion of
the Farley opinion, likely because it threatens to topple the jenga-style analysis it has
constructed. The majority has offered nothing beyond Farley and the other cases that
reflexively repeated the line from Wilson to bind Kansas' section 2 to the Fourteenth
Amendment and federal court decisions. The opinion takes a moment to ensure the reader
that our decision in Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 624, 440 P.3d 461(2019), which interpreted section 1 of the Kansas Constitution to offer protections not
found in the federal Constitution, does not bind our interpretation of section 2, but that is
the extent of the analysis.
Instead of offering a sound interpretation of section 2, the majority uses a few
sentences to tie equal protection guarantees in section 2 to those in the Fourteenth
Amendment for now and the future. Legal analysts have described this approach as
"prospective lockstepping," i.e., when a court "announces that not only for the instant
case, but also in the future, it will interpret the state and federal clauses the same."
Williams, State Courts Adopting Federal Constitutional Doctrine: Case-by-Case
Adoptionism or Prospective Lockstepping?, 46 Wm. & Mary L. Rev. 1499, 1509 (2005).
Commenters have identified numerous problems with this practice. Among those is that
resulting opinions "decide too much and . . . go beyond the court's authority to adjudicate
cases" by "purport[ing] to foresee, and to attempt to control, the future." 46 Wm. & Mary
L. Rev. at 1521. Justice Robert Utter of the Supreme Court of Washington has likened
this to a judicial constitutional amendment without a constitutional convention. State v.
Smith, 117 Wash. 2d 263, 282, 814 P.2d 652 (1991) (Utter, J., concurring). Another
defect with the practice is the reality that it "reduces state constitutional law to a
55
redundancy and greatly discourages its use and development." Gardner, The Failed
Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 804 (1992); see also Harris
v. Anderson, 194 Kan. 302, 314, 400 P.2d 25 (1965) (Fatzer, J., dissenting)
("[a]cquiescence in decisions of the Supreme Court" should not go so far as to
"engender[] a docile submission" or "become a servile abasement"). This reduction into
irrelevance threatens a most grave consequence: the elimination of the constitutional
protections our founders envisioned. As Judge Jeffrey Sutton of the Sixth Circuit has
explained, state courts cannot rely on the U.S. Constitution to vindicate individual rights
protected in state constitutions because "[f]ederalism considerations may lead the U.S.
Supreme Court to underenforce (or at least not to overenforce) constitutional guarantees
in view of the number of people affected and the range of jurisdictions implicated." 51
Imperfect Solutions at 175.
I could continue at length about the problems with the majority's lack of analysis
and its chosen approach. Instead, I turn to what it should have tackled in the first place:
an examination of the Kansas Constitution.
The district court in this case, relying on Farley, ruled that "Kansas's guarantee of
equal benefit 'affords separate, adequate, and greater rights than the federal
Constitution.'" See 241 Kan. at 671. I agree. But I go beyond Farley to get there, starting
with the text of section 2.
The first thing about section 2's text that the majority ignores is the most obvious:
it is different from the text in the Fourteenth Amendment. This—"[a]ll political power is
inherent in the people, and all free governments are founded on their authority, and are
instituted for their equal protection and benefit"—is not the same as this—"No state shall
. . . deny to any person within its jurisdiction the equal protection of the laws." I do not
mean to oversimplify things; it really is that simple. See Linde, E Pluribus, Constitutional
56
Theory and State Courts, 18 Ga. L. Rev. 165, 182 (1984) (state court is responsible for
reaching its own conclusion about state constitutional provisions regardless of whether
identical language exists in the federal Constitution, but "[a] textual difference" between
the two "makes this easier to see").
The details in the differences between these provisions are even more illuminating.
Section 2 describes a free government that is instituted for the people's equal protection
and benefit. In contrast, the Fourteenth Amendment prohibits states from denying anyone
equal protection of laws. One is a positive conferral of rights; the other is framed in the
negative. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 894, 179 P. 3d 366 (2008)
(observing that the federal Constitution grants "negative rights—i.e., rights which the
government may not infringe," while "state constitutions, including Kansas', grant
negative rights" and "positive rights, i.e., rights that entitle individuals to benefits or
actions by the state"). The Supreme Court of Vermont has observed the same distinction
between its equal benefit clause and the Fourteenth Amendment. As originally written,
the Vermont provision proclaimed, "That government is, or ought to be, instituted for the
common benefit, protection, and security of the people, nation or community; and not for
the particular emolument or advantage of any single man, family or set of men, who are a
part only of that community . . . ." Baker v. State, 170 Vt. 194, 207, 744 A.2d 864 (1999).
In comparing this provision to the federal Equal Protection Clause, the Vermont Supreme
Court had this to say:
"The first point to be observed about the text is the affirmative and unequivocal mandate
of the first section, providing that government is established for the common benefit of the people
and community as a whole. Unlike the Fourteenth Amendment, whose origin and language reflect
the solicitude of a dominant white society for an historically-oppressed African-American
minority (no state shall 'deny' the equal protection of the laws), the Common Benefits Clause
mirrors the confidence of a homogeneous, eighteenth-century group of men aggressively laying
claim to the same rights as their peers in Great Britain or, for that matter, New York, New
Hampshire, or the Upper Connecticut River Valley.
57
....
". . . . The affirmative right to the 'common benefits and protections' of
government and the corollary proscription of favoritism in the distribution of public
'emoluments and advantages' reflect the framers' overarching objective 'not only that
everyone enjoy equality before the law or have an equal voice in government but also
that everyone have an equal share in the fruits of common enterprise.' . . . Thus, at its
core the Common Benefits Clause expressed a vision of government that afforded every
Vermonter its benefit and protection and provided no Vermonter particular advantage.
[Citations omitted.]" Baker, 170 Vt. at 208-09.
Like the Vermont Constitution, section 2 describes an "affirmative right" to equal
protections and benefits. And, like the Vermont Supreme Court, I understand this to be a
broader conferral of rights than that which results from the proscription of denying
citizens equal protection of the law. The history surrounding this text confirms my
understanding.
Kansans ratified the Kansas Constitution, including the section 2 we know today,
in 1859. This was nine years before the ratification of the Fourteenth Amendment. Hodes,
309 Kan. at 624. There is no discussion of section 2's meaning or origins in the record of
the Wyandotte Constitutional Convention that produced the Constitution. See
Proceedings and Debates of the Kansas Constitutional Convention (Drapier ed., 1859),
reprinted in Kansas Constitutional Convention 187, 286, 575, 599 (1920). But it was
quite surely based on other, earlier constitutions. See Mauer, State Constitutions in a
Time of Crisis: The Case of the Texas Constitution of 1876, 68 Tex. L. Rev. 1615, 1617
(1990) (the writing of state constitutions has been largely an imitative art). Section 2 is
nearly identical to a provision in the 1851 Ohio Constitution: "All political power is
inherent in the people. Government is instituted for their equal protection and benefit, and
they have the right to alter, reform, or abolish the same." Ohio Const. art. I, § 2. And both
58
Kansas and Ohio's Constitutions model the 1776 Virginia Declaration of Rights and the
1776 Pennsylvania Constitution. Both proclaimed that "government is, or ought to be,
instituted for the common benefit, protection, and security of the people, nation, or
community." Va. Const. Bill of Rights, art. I, § 3; Pa. Const. Bill of Rights, art. V; Stolz
v. J & B Steel Erectors, Inc., 155 Ohio St. 3d 567, 575, 122 N.E.3d 1228 (2018) (Fischer,
J., concurring) (observing Ohio provision is like Virginia and Pennsylvania provisions).
This lineage helps trace at least part of the origins of our section 2 back to 1776, when the
original colonies were writing the first state constitutions. See Wood, Foreword: State
Constitution-Making in the American Revolution, 24 Rutgers L.J. 911, 913 (1993).
Legal commenters point out that provisions like these are common to state
constitutions. See Bulman-Pozen & Seifter, The Democracy Principle in State
Constitutions, 119 Mich. L. Rev. 859, 870, 892 (2021) (describing similar provisions,
including that found in Colorado's Constitution: "all government, of right, originates
from the people, is founded upon their will only, and is instituted solely for the good of
the whole"). This category of constitutional decrees focuses first on what is to be the
source of all political power—the people. The early drafters had recently declared
independence from the British government and its attempt to crush local community rule,
and their desire to stay independent and self-governed is reflected in these provisions. See
Linzey & Brannen, A Phoenix from the Ashes: Resurrecting a Constitutional Right of
Local, Community Self-Government in the Name of Environmental Sustainability, 8 Ariz.
J. Envtl. L. & Pol'y 1, 16 (2017). In naming the people as the source of all government
power, they "established popular sovereignty as that state's legal cornerstone." Amar, The
Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L.
Rev. 457, 477 (1994). The provisions detail not just the source of power, but the ends of
that power—the common good. 119 Mich. L. Rev. at 892.
59
In dedicating the people's power to the common good, the earliest framers
"condemned special treatment of individuals and classes." 119 Mich. L. Rev. at 892. As
the United States continued to form, the constitutional commitment to the common good
intensified. In the decades leading to Kansas' admission to the union, state legislatures
had begun to stray from the peoples' objectives and started to prioritize the interests of the
few. 119 Mich. L. Rev. at 892. In response, various states adopted constitutional
amendments that placed specific restrictions on legislative acts. This reaction continued
in a more general form in the 1840s and 1850s, when states began adopting constitutional
equality guarantees to curb the perceived favoritism. 119 Mich. L. Rev. at 893; James
Willard Hurst, The Growth of American Law: The Law Makers 241 (1950). ("The
persistent theme of the limitations written into state constitutions after the 1840's was the
desire to curb special privilege.").
It was against this backdrop that both Ohio and Kansas drafted their first
constitutions. Quite notably, their political power provisions were written to guarantee
not just protection and benefit for the common good, but equal protection and benefit.
This indicates a strong dedication to the longevity of popular sovereignty and a
prohibition against government action that results in special favor to the few. This casts a
broad and generous net in the equal protection arena.
The Fourteenth Amendment has a radically different conception story. It was
ratified in 1868, three years after the end of the Civil War. Its drafters were not concerned
"with favoritism" or "the granting of special privileges for a select few," but with the still
widespread discrimination against formerly enslaved persons and African Americans
generally. Matter of Compensation of Williams, 294 Or. 33, 42, 653 P.2d 970 (1982).
Although the Thirteenth Amendment abolished the legal practice of slavery in 1865, it
made no guarantee of citizenship or civil rights to Black people in America. Dred Scott
still loomed over the land, as did Barron v. The Mayor and City Council of Baltimore, 32
60
U.S. 243, 250-51, 8 L. Ed. 672 (1833), which held that the federal Bill of Rights did not
apply to the states. As a result, southern states were able to systematically deny rights to
Black people. The Fourteenth Amendment was Congress' direct response to these
continuing human rights abuses. Maggs, A Critical Guide to Using the Legislative
History of the Fourteenth Amendment to Determine the Amendment's Original Meaning,
49 Conn. L. Rev. 1069, 1083-86 (2017); Shaman, The Evolution of Equality in State
Constitutional Law, 34 Rutgers L.J. 1013, 1052 (2003) ("As envisioned by its framers,
the central purpose of the Equal Protection Clause was to eliminate hostile discrimination
against the newly freed slaves.").
The text and the historical distinction between the origins of section 2 and the
Fourteenth Amendment make it plain that the declarations have separate meanings. While
the federal provision's devotion to ensuring civil rights for Black people in America is an
important and historic part of our legal history, its concept is less broad than that of
section 2. Like the Vermont Supreme Court has described its counterpart clause, section
2 represents a constitutional guarantee that "the law uniformly afford[s] every [Kansan]
its benefit, protection, and security so that social and political preeminence [will] reflect
differences of capacity, disposition, and virtue, rather than governmental favor and
privilege." Baker, 170 Vt. at 211.
The majority has decided to ignore the plain text and the history of our section 2. I
would not have done so. Rather, at the plaintiffs' prompting, I would have given it the full
examination and analysis the people of Kansas deserve and concluded that it is a rich and
generous declaration that guarantees the people of Kansas protections that are broader
than those found in the federal Equal Protection Clause. This reflection would support the
legal framework and conclusion my dissenting colleagues present today: Ad Astra 2's
invidious discrimination against people based on past political speech and race certainly
61
presents a justiciable question and clearly violates the protections enshrined in the Kansas
Constitution.
***
BILES, J., concurring in part and dissenting in part: I agree the federal Elections
Clause does not jurisdictionally bar this court from considering the validity of
legislatively enacted congressional district maps under the Kansas Constitution. But I
agree with little else in the majority opinion, so I dissent from the rest.
These circumstances cry out for judicial review. The district court's factual
findings lay bare how this "Ad Astra 2" legislation intentionally targets fellow Kansans
because of their voting history, their prior expression of political views, their political
affiliations, and the color of their skin. One such finding declares, "Ad Astra 2 relocates
more Black, Hispanic, and Native American Kansans than any of the comparator plans,
meaning the changes in district boundaries were focused on areas with large minority
populations." (Emphasis added.) Other findings hold the Ad Astra 2 design contains
noncompact and irregularly shaped districts, unnecessarily splits political subdivisions
(cities and counties), breaks up geographically compact communities of interest, and fails
to preserve the cores of former districts. Yet the majority believes most of these injustices
are beyond the reach of mere judges, while conceding only that the mathematical
calculations and limited race dilution issues are in our judicial wheelhouse.
The district court's findings plainly implicate state-based constitutional rights, so
an appellate court's first duty should be to decide whether they are supported by
substantial competent evidence. After that, the legal analysis is garden-variety stuff. This
court said as much nearly 45 years ago. See In re House Bill No. 2620, 225 Kan. 827,
Syl. ¶ 4, 595 P.2d 334 (1979) ("Substantially equal [legislative] districts may be
62
invidiously discriminatory because they were organized in such a way as to minimize or
cancel out the voting strength of racial or political elements of the voting population.").
So why doesn't the majority fully engage?
Our state's founding and its traditions teach us that government is at its worst when
those at the helm stop treating people like neighbors. And the district court explicitly
found the "asserted pretextual justifications for Ad Astra 2 . . . cannot withstand
scrutiny." This means the State's explanations about why this legislation does what it
does don't hold water. So what should be the appropriate judicial response when state
action appears to cross constitutional boundaries and the government's excuses are lame?
Retreat is not the answer. See Kansas Const. art. 3, § 1 ("The judicial power of this state
shall be vested exclusively in one court of justice."). Courts must intervene because a
desire to harm politically disfavored groups is not a legitimate government interest and
our duty is to the Constitution.
I can't abide by the majority's decision to look the other way by invoking the
political question doctrine for the first time in this context. And when I apply the legal
analysis to the established facts, I don't like what I see. I also would apply a state-based
analysis to the race-based claims under the Kansas Constitution. I would affirm the
district court although my rationale differs in a few places. Let's begin with what
happened.
FACTUAL BACKGROUND
This stage was set 10 years ago when there was a failure to enact a new
congressional redistricting plan after the Governor and Legislature could not agree on
one. This required a federal district court to step in and fill the void. See Essex v. Kobach,
874 F. Supp. 2d 1069 (2012). But over the next decade, population shifts made the
federal court's design inconsistent with applicable one person/one vote principles, so
63
revision became necessary. And to achieve equal populations among our state's four
congressional districts, minimal shifts of about 116,000 people would have done the
trick. Each congressional district needed 734,470 people. This table makes that point:
District 2020 Census Population Change Required
First 700,773 + 33,855
Second 713,007 + 21,803
Third 792,286 -58,334
Fourth 731,814 +2,676
Net Shift Needed:
116,668 people
(3.9% of state's population)
But Ad Astra 2 does so much more. It moves 394,325 people into new
congressional districts—or 13.4% of our state's population. Said differently, for every
Kansan the Legislature needed to move, it transferred more than three. And as the district
court found, "[t]his significant shift of population between districts was not the necessary
result of population changes within the state between 2010 and 2020, nor the result of
Kansas'[] political geography." Ad Astra 2 affected 14 Kansas counties in this way:
County Old Districts New Districts Residents Moved
2012-2022 Ad Astra 2 (2020 Census data)
Wyandotte Third Second (portion) 112,661
Douglas Second First (portion) 94,934
Geary First Second 36,379
Lyon First Second 32,179
Franklin Second Third 25,643
Miami Second/Third Third 20,495
Jefferson Second First 18,974
64
Jackson Second First 13,249
Marion First Second 11,823
Anderson Second Third 7,877
Chase First Second 2,572
Wabaunsee First Second 6,877
Morris First Second 5,386
Marshall First/Second First 5,276
Even a casual observer would wonder what possibly motivates this much
population transfer to our election-year landscape—especially when a traditional
guidepost for neutral redistricting calls for retaining core districts. See, e.g., The
Proposed Guidelines and Criteria for 2022 Kansas Congressional and State Legislative
Redistricting, subsection 4(c) ("The core of existing congressional districts should be
preserved when considering the communities of interest to the extent possible."); see also
Essex, 874 F. Supp. 2d at 1089 ("The Court's plan most effectively furthers state goals of
creating compact and contiguous districts, preserving existing districts, maintaining
county and municipal boundaries and grouping together communities of interest.").
The district court noted Ad Astra 2 preserves just 86% of the former districts'
cores, while a "least-change plan" adhering to the legislative redistricting committee
guidelines for core retention retained 97%. This disregard for core retention is strikingly
illustrated by how Ad Astra 2 surgically scoops out the densely populated City of
Lawrence from Douglas County to submerge it in a new congressional district stretching
as far west as Colorado and encompassing a large portion of the Oklahoma border. The
rest of Douglas County stays in CD 2. The district court ultimately found based on the
evidence before it that, "Ad Astra 2 cannot be justified by a desire to retain the cores of
prior congressional districts."
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Plaintiffs filed suit alleging this intentional government action violated their rights
protected by sections 1, 2, 3, 11, and 20 of the Kansas Constitution Bill of Rights and
article V, section 1 of the Kansas Constitution. The district court agreed with plaintiffs in
a 209-page decision after a four-day trial. And except for the extraordinary time
considerations that expedite this case, the analysis is straightforward and for half a
century familiar territory for Kansas courts.
THE PARTISAN GERRYMANDERING CLAIMS
At the outset, it is necessary to understand what we are talking about. The district
court's central holdings concern what it labels and defines as "partisan gerrymandering."
The important part is the definition. It is too simplistic to just think of this as Republicans
being mean to Democrats (or vice versa), or to trivialize what happened with an
"Elections Have Consequences" bromide. The majority falls victim to that in my view
when it mischaracterizes this case as seeking something that is unattainable—an absolute
prohibition against any partisanship in the legislative process. Slip op. at 24 (stating
plaintiffs "claim that any consideration by the Legislature of partisan factors in deciding
where to draw district lines is offensive to constitutional principles"). Plaintiffs' claims
and this case do no such thing. The district court made clear it was ruling on something
much more substantial and sweeping than political bickering.
The district court showed its hand early. It broadly defined the elements of
"partisan gerrymandering" as: (1) the Legislature acting with the purpose of achieving
partisan gain by diluting the votes of disfavored-party members, and (2) the enacted
congressional plan having the desired effect of substantially diluting disfavored-party
members. It then fleshed out the gravity of what it was looking for by noting the goal of
partisan gerrymandering "is to eliminate the people's authority over government by
66
giving different voters vastly unequal political power." And it explained how the harm
occurs:
"[I]n at least three related, but independent ways. First, partisan gerrymandering
unconstitutionally discriminates against members of the disfavored party based on
viewpoint. Second, partisan gerrymandering unlawfully burdens disfavored-party
members' freedom of association. Third, partisan gerrymandering unlawfully retaliates
against disfavored-party members for engaging in protected political speech and
association."
The court then narrowed its focus even further, to make this about government
retaliation. It said:
"The State engages in impermissible retaliation when plaintiffs can establish that (1) they
were engaged in a constitutionally protected activity; (2) the State's actions adversely
affected the protected activity; and (3) the State's adverse action was substantially
motivated by plaintiffs' exercise of their constitutional rights."
Ultimately, the district court held:
"Partisan gerrymandering satisfies all three of these elements. First, as described
above, voters seek to engage in protected activities, including exercising their right to
free speech and assembly by forming political parties, voicing support for their
candidates of choice, and casting votes for those candidates. Second, partisan
gerrymandering burdens these rights by reducing the voting power of members of the
disfavored party, discriminating against members of that party on the basis of their
viewpoints, and burdening their ability to associate by obstructing their political
organizations. Third, the State's actions are motivated by voters' exercise of their
constitutional rights: Partisan gerrymanderers move voters for the disfavored party into
different districts precisely because those voters are likely to engage in protected
conduct."
67
I share the district court's singular focus. This is about targeted government action
against disfavored Kansans based on how they exercise their constitutional rights. And in
that regard, I have been haunted by this 64-year-old passage on associational rights
written by Justice John Marshall Harlan II in a unanimous decision:
"Effective advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association, as this Court has more
than once recognized by remarking upon the close nexus between the freedoms of speech
and assembly. It is beyond debate that freedom to engage in association for the
advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the
Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.
. . . Of course, it is immaterial whether the beliefs sought to be advanced by association
pertain to political, economic, religious or cultural matters, and state action which may
have the effect of curtailing the freedom to associate is subject to the closest scrutiny.
[Citations omitted.]" National Ass'n for Advancement of Colored People v. Alabama, 357
U.S. 449, 460-61, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958).
Partisan gerrymandering assaults these associational freedoms and their related
constitutional protections. But before diving into those details, let's first consider the
majority's decision to disembark before doing even that much by ruling plaintiffs' claims
on partisan gerrymandering do not present a justiciable case or controversy.
The political question doctrine
It is important to appreciate the judicial bait-and-switch that has happened. First,
the United States Supreme Court held in a recent 5-4 decision that federal courts must
avoid partisan gerrymandering claims from the various states. Rucho v. Common Cause,
588 U.S. ___, 139 S. Ct. 2484, 2499-500, 204 L. Ed. 2d 931 (2019). But in doing so, the
Court's majority noted state courts were still available to stand guard against
constitutional mischief. 139 S. Ct. at 2507 ("Our conclusion does not condone excessive
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partisan gerrymandering. Nor does our conclusion condemn complaints about districting
to echo into a void. . . . Provisions in state statutes and state constitutions can provide
standards and guidance for state courts to apply.").
Plaintiffs here dutifully followed Rucho's prompt and brought their case against
Ad Astra 2 to state court, even though federal court is where these issues had been heard
in our state over the past several decades. See, e.g., Essex, 874 F. Supp. 2d 1069; State ex
rel. Stephan v. Graves, 796 F. Supp. 468 (1992); O'Sullivan v. Brier, 540 F. Supp. 1200(1982). Plaintiffs' redeployment to state court might explain why the Rivera majority
labels this case as "first-of-its-kind litigation." Slip op. at 6. But that's a misnomer
because their underlying redistricting claims are traditional in context—despite the
majority's tagging them as "unique and novel." Slip op. at 6; see, e.g., In re 2002
Substitute for Senate Bill 256, 273 Kan. 731, Syl. ¶ 4, 45 P.3d 855 (2002) ("Lack of
contiguity or compactness of districts in reapportionment legislation raises immediate
questions as to political gerrymandering and possible invidious discrimination which
should be satisfactorily explained by some rational state policy or justification."); In re
House Bill No. 3083, 251 Kan. 597, 607, 836 P.2d 574 (1992) (same); In re House Bill
No. 2620, 225 Kan. 827, Syl. ¶ 4 (even substantially equal legislative districts may be
invidiously discriminatory if organized to minimize or cancel out the voting strength of
racial or political elements of the voting population).
But the Rivera majority slams the courthouse door shut by declaring: "[W]e can
discern no judicially manageable standards by which to judge a claim that the Legislature
relied too heavily on the otherwise lawful factor of partisanship when drawing
[congressional] district lines." Slip op. at 2, Syl. ¶ 6. And the discouraging by-product is
judicial passivity at precisely a moment when a Kansas court has held the rights of
Kansans guaranteed by our state Constitution are in the balance. It should go without
saying this is not a time to stand down. See, e.g., Harris v. Shanahan, 192 Kan. 183, 206-
69
07, 387 P.2d 771 (1963) ("[W]hen legislative action exceeds the boundaries of authority
limited by our Constitution, and transgresses a sacred right guaranteed or reserved to a
citizen, final decision as to invalidity of such action must rest exclusively with the courts.
. . . However delicate that duty may be, we are not at liberty to surrender, or to ignore, or
to waive it.").
Nor does brushing aside plaintiffs' redistricting claims here conform to how our
court has viewed redistricting issues over many decades. The district court considered our
prior caselaw and observed we have had no qualms since at least 1963 in expressing a
willingness to confront these politically sensitive issues when the evidence justified it,
citing Harris, 192 Kan. at 207 ("It is axiomatic that an apportionment act, as any other act
of the legislature, is subject to the limitations contained in the [Kansas] Constitution, and
where such act . . . violates the limitations of the Constitution, it is null and void and it is
the duty of courts to so declare."). The district court then explained:
"Kansas courts routinely determine manageable standards to enforce broad constitutional
language—including in the redistricting context. And other states' supreme courts have
successfully adjudicated similar claims under their state constitutions, offering a model
for this Court to apply. Indeed, the ample evidence of Ad Astra 2's extreme, intentional
partisan bias makes this an easy case." (Emphasis added.)
The district court concluded "the Kansas Constitution's equal protection, free
speech and assembly, and suffrage provisions provide manageable standards to
adjudicate partisan gerrymandering claims." It further noted, "The key provisions here—
involving equality, free speech, and suffrage—have long been the basis of litigation in
state courts, from which Kansas courts can draw and provide manageable standards."
And the court added, "[W]hile federal courts may be unable to hear partisan
gerrymandering claims under the federal Constitution, the Kansas Constitution allows
this [state] Court to hear those claims."
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The district court then set out its decision-making criteria for the nonrace-based
claims: a congressional plan constitutes a partisan gerrymander when "the Court finds, as
a factual matter, (1) that the Legislature acted with the purpose of achieving partisan gain
by diluting the votes of disfavored-party members, and (2) that the challenged
congressional plan will have the desired effect of substantially diluting disfavored-party
members' votes." The court also detailed how its analytical approach paralleled previous
state caselaw:
"Decisions from the Kansas Supreme Court considering partisan gerrymandering
claims while reviewing state legislative reapportionment plans underscore this point.
Although the Court has never held a redistricting plan unconstitutional on partisan
gerrymandering grounds, it has repeatedly indicated that partisan gerrymandering claims
are cognizable under the Kansas Constitution, and that the allegations in past cases failed
on the merits because the challengers—unlike Plaintiffs here—had failed to offer
evidence substantiating their claims. See In re [House Bill No. 3083], 251 Kan. 597, 607,
836 P.2d 574 (1992) ('No evidence has been offered that would indicate the size and
shape of House District 47 was engineered to cancel out the voting strength of any
cognizable group or locale.'); In re Senate Bill No. 220, 225 Kan. 628, 637, 593 P.2d 1(1979) (concluding that challengers had failed to 'show[]' an unconstitutional
gerrymander); In re House Bill No. 2620, 225 Kan. 827, 834-35, 595 P.2d 334 (1979)
(concluding that 'no claim or showing of gerrymandering . . . ha[d] been made').
Although these decisions did not discuss the gerrymandering allegations at great length—
likely because of the lack of supporting evidence—or give clear rules for resolving future
claims, none suggested that the Court lacked jurisdiction to consider the allegations.
Instead, each indicated that the Legislature's discretion in redistricting is not boundless,
and that Kansas courts have jurisdiction to hear partisan gerrymandering claims."
This tied back to the district court's earlier explanation as to how it thought the
legal analysis should unfold:
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"The court views the plaintiffs' claims as constitutional equal protection actions
and finds guidance in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (Kan. 1987)
pages 669-670, where three levels of scrutiny are established increasing with the
importance of the right or interest involved and the sensitivity of the classification.
"In level of scrutiny from least to most: 1) rational or reasonable basis test—act
presumed constitutional plaintiffs' burden to show—classification is 'irrelevant' to
achievement of the state's goal, 2) heighten[ed] scrutiny—which requires the legislation
to 'substantially' foster a legitimate state purpose. There must be a greater justification
and a direct relationship between the classification and the state's goal,
3) strict scrutiny—applicable in cases of suspect classification including voting. No
presumption of validity burden of proof shifted to defendant. Classification must be
'necessary to serve a compelling state interest' or it is unconstitutional. [Citations
omitted.]"
My point is simply that the district court did not go rogue. It adopted a traditional
equal protection framework firmly founded in our caselaw—triggered by its initial
determination that the questioned state action, i.e., Ad Astra 2's enactment, resulted from
the intentional targeting of constitutionally protected activities. This classic framework is
standard fare: (1) Plaintiffs establish a state action and its purpose or intent; (2) plaintiffs
establish the state action's adverse effects on them; and, if they successfully make those
showings, then (3) the State must come up with an appropriate justification for its actions
subject to the applicable level of scrutiny based on the rights claimed to be injured. See,
e.g., In re Weisgerber, 285 Kan. 98, 104, 169 P.3d 321 (2007) (equal protection violation
must include demonstration that plaintiffs' treatment resulted from a "'deliberately
adopted system'" that results in "intentional systematic unequal treatment"); see also
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
264-65, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) (explaining that equal protection claims
alleging disproportionate racial impact from facially neutral legislation require "[p]roof
of racially discriminatory intent or purpose"); Washington v. Davis, 426 U.S. 229, 244-
72
45, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (proof of discriminatory racial purpose
necessary to make out equal protection claim). And the district court's application of this
framework is just as ordinary. Let's explore that.
Consider first how our court has viewed its role when addressing redistricting
cases before today. The Kansas Constitution's article 10, section 1 directs this court's
determination every 10 years of what that article describes as "the validity" of state
Senate and House legislative reapportionments. But the single word "validity" offers little
or no textual guidance. Yet, this court over many years has consistently summarized its
analytical role as: "For a reapportionment act of the legislature to be valid it must be
valid both as to the procedure by which it became law and as to the substance of the
apportionment itself to satisfy the constitutional requirements." In re Senate Bill No. 220,
225 Kan. 628, Syl. ¶ 2, 593 P.2d 1 (1979). But what does this second factor ("the
substance of the apportionment itself") mean?
This court has repeatedly explained this substance factor includes much more than
just mathematical precision for one person/one vote principles and safeguarding against
race-based prejudice. It encompasses other equal protection canons as well. See In re
House Bill No. 2620, 225 Kan. 827, Syl. ¶ 4 ("Substantially equal districts may be
invidiously discriminatory because they were organized in such a way as to minimize or
cancel out the voting strength of racial or political elements of the voting population.");
In re House Bill No. 3083, 251 Kan. 597, Syl. ¶ 6 ("Lack of contiguity or compactness
raises immediate questions about political gerrymandering and possible invidious
discrimination that should be satisfactorily explained by some rational state policy or
justification."); In re 2002 Substitute for Senate Bill 256, 273 Kan. 731, Syl. ¶ 4 (same).
And even before article 10 included an explicit role for the court in the
redistricting process, this court referenced equal protection's arbitrary and capricious
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standard as something the court would watch out for. In Harris v. Anderson, 196 Kan.
450, 456, 412 P.2d 457 (1966), the court noted:
"When the [state reapportionment] Act is viewed as a whole, it is apparent that
the legislature acted neither arbitrarily nor capriciously. On the contrary, the Act
represents a diligent, earnest and good-faith effort on the part of the Kansas legislature to
comply with this court's previous order to reapportion [the House to achieve equal-
populated districts required by Reynolds v. Sims, 377 U.S. 533, 84 S. Ct 1362, 12 L. Ed.
2d 506 (1964)]."
So why would the application of state equal protection principles be any different
today? It can't be just because this case concerns congressional district reapportionment
and article 10 is silent about those districts. Our court has previously mentioned even that
possibility when it said, "The area of a congressional district should be reasonably
contiguous and compact under a proper apportionment plan and, if not, a satisfactory
explanation should be given by the proponents of the plan so as to remove any question
of gerrymandering and invidious discrimination." (Emphases added.) In re House Bill
No. 2620, 225 Kan. at 834.
Plaintiffs' claims align with our prior caselaw despite the majority's assurance that
"plaintiffs invited the district court to craft new and never before applied legal standards
and tests unmoored from either the text of the Kansas Constitution or the precedents of
this court." Slip op. at 5. Plaintiffs allege, and have successfully proven, that their
government targeted them with this new legislation because of how they have exercised
their constitutionally protected rights of political association and their right to vote, and
because of the color of their skin. And they showed Ad Astra 2 accomplishes this by
restructuring the method of selecting our representatives in Congress through the
dismemberment of their neighborhoods, their cities, their counties, and their communities
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of interest. The purpose, of course, was to dilute their power to vote to effectively
enhance the vote of others.
Plaintiffs' claims are not "unmoored" from how our court previously viewed its
role in patrolling the reapportionment landscape to protect constitutional rights. See In re
House Bill No. 2620, 225 Kan. 827, Syl. ¶ 6 ("[A]ll courts generally agree that lack of
contiguity or compactness raises immediate questions as to political gerrymandering and
possible invidious discrimination."); In re House Bill No. 3083, 251 Kan. at 607 (same);
and In re 2002 Substitute for Senate Bill 256, 273 Kan. 731, Syl. ¶ 4 (same). If these
issues were political questions without manageable judicial standards, why would our
court so consistently have bothered to even acknowledge its concern about partisan
gerrymandering over so many prior decades?
The majority remains silent about that, but the answer is obvious from the
caselaw. Our court has had no difficulty seeing its job as protecting constitutional rights
when redistricting comes around beyond just doing the population math. It even said as
much before the Kansas Constitution spelled out any explicit role for the court as it does
now. See Kan Const. art. 10, § 1; Harris, 192 Kan. at 191. The Harris court struck down
the 1963 apportionment of state senate districts based on failures in the constitutional
process for enrolling bills and population equality. But in doing so, it acknowledged
legislative discretion in redistricting remained subject to judicial limitations and
expectations:
"The exercise of discretion and good faith by the legislature in enacting an apportionment
law must be limited to the standards provided in our Constitution and not to some other
which the Constitution has not fixed. This is not to say, however, that there is not an
element of discretion involved in the enactment of any legislative apportionment. Subject
to the requirement of equal population provided by Article 10, Section 2, the location of
boundaries, the shape, area, and other relevant factors are proper considerations for the
75
legislature in the enactment of such a statute. Indeed, geographical considerations are
necessarily attendant in the accomplishment of this purpose for the resulting districts
should, where possible be compact and contain a population and area as similar as may
be in its economical, political and cultural interests, all as determined by the legislature
in its discretion, not acting arbitrarily or capriciously." (Emphases added.) 192 Kan. at
205.
So in this very early reapportionment case, in addition to simple mathematical
calculations our court embedded its concerns for legislative good faith, district
compactness, and maintenance of communities of interest (economic, political, and
cultural), as well as an absence of arbitrary and capricious legislative conduct. And it
warned,
"[W]hen legislative action exceeds the boundaries of authority limited by our
Constitution, and transgresses a sacred right guaranteed or reserved to a citizen, final
decision as to invalidity of such action must rest exclusively with the courts. In the final
analysis, this court is the sole arbiter of the question whether an act of the legislature is
invalid under the Constitution of Kansas." (Emphasis added.) 192 Kan. at 207.
In other words, our court did not need other legislative enactments or more explicit
constitutional direction to find its judicial path for ensuring protection of constitutional
rights in the redistricting process. And there is more.
Two years later, this court repeated its caution against arbitrary and capricious
legislative action in reapportionment. See Harris v. Anderson, 194 Kan. 302, 311, 400
P.2d 25 (1965). A year after that, the court paid homage to compactness and communities
of interest as positive and neutral reapportioning guideposts in Harris v. Anderson, 196
Kan. 450, 453, 412 P.2d 457 (1966) ("The districts created by the Act are compact and
contain a population and area as similar as may be in their economical, political and
cultural interests."). This 1966 case ultimately held: "When the Act is viewed as a whole,
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it is apparent that the legislature acted neither arbitrarily nor capriciously." 196 Kan. at
456.
In 1974, the people amended the constitutional reapportionment article to specify
that our court affirmatively determine the "validity" of legislation drawing new state
senate and house districts. L. 1974, ch. 457, § 1. And in 1979 this court acted under the
amended article's mandate. See In re Senate Bill No. 220, 225 Kan. at 633 ("The law is
simple; its application is difficult."). It is a fair summary to say the court recognized a
reality to the "political trappings" inherent in the legislative process of reapportionment.
225 Kan. at 634. But even so, the court did not surrender its judicial review function
regarding "political gerrymandering"; it still expected justifications tied to legitimate state
interests to explain where lines were drawn, such as preserving cities and counties,
maintaining communities of interest, and preserving local economic interests, e.g.,
farming. 225 Kan. at 637. Ultimately, the court concluded: "The objection to the bill on
the ground that there was partisan political gerrymandering in redistricting the senatorial
districts does not reveal a fatal constitutional flaw absent a showing of an equal
protection violation. No such showing has been made." (Emphasis added.) 225 Kan. at
637. Again, the point here is that our court did not simply abandon its judicial review
when considering partisan gerrymandering claims or decry any lack of manageable
judicial standards. It looked under the hood for the evidence before validation.
Similarly, that same year when addressing state House redistricting, our court
again acknowledged the reality that "politics and political considerations are inseparable
from districting and apportionment," but again it did not let that end the constitutional
inquiry. See In re House Bill No. 2620, 225 Kan. 827, Syl. ¶ 4 ("Substantially equal
districts may be invidiously discriminatory because they were organized in such a way as
to minimize or cancel out the voting strength of racial or political elements of the voting
population."). Our court held: "[A]ll courts generally agree that lack of contiguity or
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compactness raises immediate questions as to political gerrymandering and possible
invidious discrimination which should be satisfactorily explained by some rational state
policy or justification." 225 Kan. 827, Syl. ¶ 6. Finally, the court noted: "No claim or
suggestion has been made by anyone that the shaping of the districts was for the purpose
of minimizing or cancelling the voting strength of any racial or political element of the
voting population." 225 Kan. at 835.
There would be no purpose to our court mentioning these potential claims and
expressing its willingness to consider invidious discrimination in all its forms if the court
believed that kind of analysis was beyond its reach as the majority now claims. The
majority cannot square its retreat on this issue with our court's nine reapportionment
cases since 1963. None have suggested these claims fall outside the judicial sphere for
further inquiry. See In re Substitute for House Bill 2492, 245 Kan. 118, 125, 775 P.2d
663 (1989) ("None of the persons appearing here challenge the apportionment legislation
now before us on the basis that it dilutes the vote of rural or urban voters, or other
specific groups of voters, or that the districts created deviate impermissibly from 'perfect'
population."); In re House Bill No. 3083, 251 Kan. 597, Syl. ¶ 6 ("Lack of contiguity or
compactness raises immediate questions about political gerrymandering and possible
invidious discrimination that should be satisfactorily explained by some rational state
policy or justification."); In re 2002 Substitute for House Bill 2625, 273 Kan. 715, 44
P.3d 1266 (2002) (same); and In re 2002 Substitute for House Bill 256, 273 Kan. 731,
Syl. ¶ 4, (same); see also Harris, 192 Kan. at 207 ("[A]n apportionment act, as any other
act of the legislature, is subject to the limitations contained in the Constitution, and where
such act exceeds the bounds of authority vested in the legislature and violates the
limitations of the Constitution, it is null and void and it is the duty of courts to so
declare.").
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The majority also appears stymied at the first step of the equal protection analysis,
i.e., determining whether Ad Astra 2 discriminates against similarly situated Kansans. It
seems vexed with the conundrum that to "begin evaluating whether an alleged partisan
gerrymander is unconstitutional, we would first need to determine what our baseline
definition of 'fairness' is." Slip op. at 33. The majority says it is troubled by what it views
as the lack of a discernable, legal test for deciding when "how much" political
gerrymandering becomes "too much." Slip op. at 32. The majority goes on to point out
that various "other states have solved this problem by codifying such clear standards in
their laws." Slip op. at 33. But are they really so clear?
Among the examples the majority cites are various permutations of prohibitions
on district maps which are drawn "primarily to favor or disfavor a political party." Ohio
Const. art. 11, § 6; Colo. Const. art. V, § 44; see also Mich. Const. art. 4, § 6; N.Y. Const.
art. 3, § 4. But how is a "favor" or "disfavor" standard less squishy than our Kansas
caselaw going back more than half a century? That caselaw establishes the Legislature
may not engage in "invidious" partisan gerrymandering, or that districts may not be
"organized in such a way as to minimize or cancel out the voting strength of racial or
political elements of the voting population . . . ." In re House Bill No. 2620, 225 Kan.
827, Syl. ¶ 4. And we have said when the facts indicate improper partisan
gerrymandering may be present, the legislation "should be satisfactorily explained by
some rational state policy or justification." In re 2002 Substitute for Senate Bill 256, 273
Kan. 731, Syl. ¶ 6.
What our caselaw shows is that when redistricting has a discriminatory effect on
Kansas voters because of partisan affiliation or voting preferences, this violates equal
protection of the laws as guaranteed by the Kansas Constitution if that action cannot
withstand the appropriate level of scrutiny for the plan, i.e., if the Legislature
intentionally discriminated against individuals whose viewpoints it disfavored without an
79
adequate governmental reason to explain what it did. Said differently, the answer to the
majority's question of how much is too much is straightforward: partisan gerrymandering
is "too much" when partisanship motivated the state action in question when there is no
other legitimate rationale driving the outcome.
These standards can happily coexist with the inescapable truth that legislators
entrusted by their fellow Kansans with drawing electoral districts will act to some degree
in self-interest. But this obnoxious political reality does not make partisanship a
legitimate government interest that justifies sweeping state action to suppress citizens'
voting strength and split up their communities simply because they hold differing
political viewpoints. It reflects that when there is discretion to modify voting districts
within a vast range of possible outcomes, an adequate government rationale must defend
the chosen path. Our Constitution must not permit discretion to become a tool for abuse
of government power, allowing improper motives to prevail over all reason and be
dominated by improper criteria for modifying district lines to achieve population
equalization.
Viewed in this manner, our court's role is confined not to determining the best
policy, but to deciding whether the Legislature's discretionary decisions can be explained
by a lawful government aim. See Gannon v. State, 298 Kan. 1107, 1150, 319 P.3d 1196(2014) (holding constitutional provision requiring Legislature to provide suitable
financing for public K-12 schools supplied judicially discoverable and manageable
standards for court review of Legislature's decision-making). In Rucho, the dissenting
justices noted courts across the country had already formulated such a standard. They
argued this standard eschews "judge-made conception[s] of electoral fairness" by using
the state's own redistricting criteria as a baseline, requiring "difficult showings relating to
both purpose and effects," and thereby invalidating "the most extreme, but only the most
80
extreme, partisan gerrymanders." Rucho, 139 S. Ct. at 2516 (2019) (Kagan, J.,
dissenting).
This rule against naked partisan discrimination is deeply embedded in our state's
existing redistricting caselaw as previously discussed. I agree with the district court that
adjudication of the partisan gerrymandering claims made here is not barred by the
political question doctrine. And I agree with the district court's analysis of the remaining
factors from Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).
Substantial competent evidence supports the factual findings
Recall that the district court's ultimate conclusion about Ad Astra 2's
unconstitutionality is not grounded in the fact that the legislation was shrouded in
secrecy, had no bipartisan support, minimized substantive public input, failed to adhere to
traditional guideposts for neutral redistricting, enacted with lightning speed, showed
flashes of partisanship, was initially unsettling even to members of the majority party, or
followed promises of a prominent majority-party state legislator to achieve four majority-
party congressional districts. Rather, these are just symptoms all pointing to a fatal
diagnosis in keeping with our caselaw. See In re House Bill No. 3083, 251 Kan. 597, Syl.
¶ 6 ("Lack of contiguity or compactness raises immediate questions about political
gerrymandering and possible invidious discrimination that should be satisfactorily
explained by some rational state policy or justification.").
Defendants do little to dispute the evidentiary support for the district court's
findings. But let's note the essential ones for the partisan gerrymandering claim:
• The contrast between the minimal population shifts required versus the
much larger shifts that occurred is poorly explained.
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• Ad Astra 2 creates noncompact and irregularly shaped districts despite
neutral guidelines to the contrary.
• Ad Astra 2 contains numerous unnecessary political subdivisions splits,
breaks up geographically compact communities of interest, and fails to
preserve the cores of existing districts.
• Kansas' political geography does not explain Ad Astra 2's partisan bias. The
map's partisan bias "goes beyond any 'natural' level of electoral bias caused
by Kansas' political geography or the political composition of the State's
voters."
• In addition to carving up communities with significant commonality, Ad
Astra 2 pairs several far-flung communities that share little in common, like
the City of Lawrence into CD 1. And in CD 3, Ad Astra 2 splits Wyandotte
County and pairs its southern portion with Johnson, Miami, Franklin, and
Anderson Counties. As a result, a large portion of the Kansas City metro
area is now paired with rural areas in southern Johnson County, as well as
Miami, Franklin, and Anderson Counties.
• Ad Astra 2 cannot be justified by the purported desire to keep Johnson
County whole within a single congressional district to elevate a supposed
community of interest constituting the entirety of Johnson County over
preserving the Kansas City metro area. The argument that Ad Astra 2 is the
product of a desire to keep Johnson County whole is a post hoc
rationalization.
• The district lines in the areas around Kansas City and Lawrence show clear
signs of purposeful redistribution of Democratic voters between districts to
prevent them from effectively achieving majority status.
• Ad Astra 2 consistently places Kansans across the northeast part of the state
in districts that are far more Republican than their neighborhoods.
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• Ad Astra 2 was designed intentionally and effectively to maximize
Republican advantage in the state's congressional delegation and amounts
to an extreme, intentional pro-Republican outlier at the statewide level.
• Three of the four districts in Ad Astra 2 are extreme statistical partisan
outliers. The partisan compositions of the enacted congressional districts
containing Kansas City, Topeka, Shawnee, and Lawrence are extreme pro-
Republican partisan outliers compared to the simulated districts produced
using the Guidelines and traditional redistricting principles.
• Ad Astra 2's dilution of Democratic voting power will obstruct plaintiffs'
ability to elect and support their candidates of choice.
Each of these findings is supported by the evidentiary record. They
demonstrate Ad Astra 2 intentionally treats arguably indistinguishable classes of
Kansas citizens differently. Namely, citizens and communities whose voting histories
reflect support for non-Republican candidates have been redistributed across
congressional districts to dilute those voters' effectiveness in future elections. See
Harper v. Hall, 380 N.C. 317, 379, 868 S.E.2d 499 (2022) (discussing potential equal
protection violation arising from "classifying voters on the basis of partisan affiliation
so as to dilute their votes"). And this dilution is demonstrated by the court's finding,
amply supported by plaintiffs' credible expert testimony, that Ad Astra 2 is not only
an intentional and effective partisan gerrymander, but also an extreme partisan outlier
compared to hundreds of simulated plans based on politically neutral redistricting
criteria.
Conclusions of law regarding partisan gerrymandering
Applying the law to these facts demonstrates Ad Astra 2 violates Kansans'
right to equal protection of the laws. Our court's three-step equal protection analysis is
well known:
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"[1] When the constitutionality of a statute is challenged on the
basis of an equal protection violation, the first step of analysis is to
determine the nature of the legislative classifications and whether the
classifications result in arguably indistinguishable classes of individuals
being treated differently. . . . [2] After determining the nature of the
legislative classifications, a court examines the rights which are affected
by the classifications. The nature of the rights dictates the level of
scrutiny to be applied—either strict scrutiny, intermediate scrutiny, or the
deferential scrutiny of the rational basis test. [3] The final step of the
analysis requires determining whether the relationship between the
classifications and the object desired to be obtained withstands the
applicable level of scrutiny.
"In regard to the first step . . . an individual complaining of an equal
protection violation has the burden to demonstrate that he or she is 'similarly
situated' to other individuals who are being treated differently [by the
Legislature.] [Citations omitted.]" In re A.B., 313 Kan. 135, 145, 484 P.3d 226(2021).
Combined with the indisputable reality that Ad Astra 2 moves far more individuals
than necessary and disregards traditional criteria for compactness and communities of
interest, the plaintiffs' expert witness testimony that Ad Astra 2 would have produced the
same partisan outlier patterns in statewide elections from 2016 to 2020 is telling. It shows
Ad Astra 2 targets individuals and their communities who voted against Republican
candidates in past races for political resettlement across the state's four congressional
districts. Its impact is to harm the disfavored Kansans by denying them the acknowledged
benefits from adherence to neutral redistricting guidelines like the preservation of
communities of interest. And this was all done to prevent these individuals' potential,
future votes against Republican candidates from harming the electoral chances of
preferred future candidates. This violates state constitutional protections.
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Free speech principles under the First Amendment to the United States
Constitution and section 11 of the Kansas Constitution Bill of Rights typically would
dictate that governmental viewpoint discrimination triggers strict scrutiny, which requires
the law be narrowly tailored to serve a compelling government interest if it is to be
upheld. See, e.g., Reed v. Town of Gilbert, Arizona, 576 U.S. 155, 163-64, 135 S. Ct.
2218, 192 L. Ed. 2d 236 (2015) (strict scrutiny applies to both content-based regulation
and facially content-neutral regulation that either "cannot be 'justified without reference
to the content of the regulated speech'" or "were adopted by the government 'because of
disagreement with the message [the speech] conveys'"); Unified School Dist. No. 503 v.
McKinney, 236 Kan. 224, 235, 689 P.2d 860 (1984) (restriction on private speech subject
to strict scrutiny). But we need not be as stringent as strict scrutiny here because, in
keeping with the discussion of manageable judicial standards, Ad Astra 2 fails any test of
scrutiny. To be sure, Ad Astra 2's intentional disparate treatment of Kansans based on
past political speech is most certainly not even rationally related to a legitimate
government interest.
This redesign goes far beyond attempting to safely retain the current partisan
balance in the Kansas congressional delegation. See In re 2002 Substitute for Senate Bill
256, 273 Kan. at 722 (describing "safely retaining seats for the political parties" as a
"legitimate political goal"). Indeed, the district court found Ad Astra 2 intentionally
discriminates against voters on a partisan basis, noting the need to equalize district
populations cannot explain the discrimination when Ad Astra 2 moves more than three
voters to new districts for every one required by the math. And plaintiffs' expert
testimony credibly showed the map's discriminatory effect cannot be explained by
adherence to neutral criteria.
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Defendants attempt to offer non-partisan justifications for Ad Astra 2, but to no
avail. Their excuses are not supported by the evidentiary record. They argue the map
achieves population equality; "keeps all incumbents in their current districts"; "keeps all
but [four] of Kansas' 105 counties whole"; and "honors communities of interest across
Kansas." But these rationalizations run headlong into the facts found by the district court.
Population equality was necessary, yet the Legislature took this as a license to move any
number of people it wanted, and hundreds of equally drawn alternative districts showed
achieving mathematical precision was easily attainable without this most drastic redesign.
Defendants fail to adequately explain this. Also, a map splitting more than three counties
was shown to be a statistical outlier and contributed to the district court's conclusion that
Ad Astra 2 in fact does not honor communities of interest. And while the incumbents
may all continue to reside in their same districts, the evidence recited by the district court
showed a motivating intent was to destroy the incumbency of Kansas' lone Democratic
representative. In the end, the district court considered all rationales offered and explicitly
concluded, the "asserted pretextual justifications for Ad Astra 2 . . . cannot withstand
scrutiny."
People have a protected right to associate themselves with others of like-mind, and
to voice their political opinions at the ballot box. See section 11 of the Kansas
Constitution Bill of Rights. And when they do, they should not be treated dismissively or
negatively by their government. What we are left with are facts demonstrating an intent
to treat some voters differently based on the historical exercise of these constitutional
rights. The facts show Ad Astra 2 was the vehicle for this governmental action, and no
other rational, legitimate explanation for this treatment was or can be mustered.
In updating district lines, the levers of government were not operated to achieve
permissible ends, even with some tolerance for incidental, political benefits. And lacking
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an appropriate government interest to justify its effects, Ad Astra 2 deprives Kansans the
equal protection of the laws of this state.
RACE-BASED DISCRIMINATION DILUTING MINORITY VOTING STRENGTH
The district court also invalidated Ad Astra 2 under the Kansas Constitution
because it unconstitutionally, intentionally drew districts along racial lines and
intentionally diluted the votes of racial minorities. The court held that under Ad Astra 2,
"the district lines are carefully tailored to split the heart of metro Kansas City—and with
it nearly a century of tradition—along its most densely minority neighborhoods." The
map, the court continued, "surgically targets the most heavily minority areas" by moving
more than 45,000 minority voters in metro Kansas City from CD 3 to CD 2, giving CD
3—previously home to Kansas' largest minority population—the smallest minority
population of any congressional district in Kansas. The district court found defendants'
neutral explanations for this stark racial divide between CD 2 and CD 3 were pretextual.
Today, the majority overturns that decision because it says plaintiffs failed to
show either of two things. First, CD 3 is a majority-minority single member district,
which is required under federal law to bring a minority vote-dilution claim. See
Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986) (To
state a claim for voter dilution under the Voting Rights Act, "the minority group must be
able to demonstrate that it is sufficiently large and geographically compact to constitute a
majority in a single-member district."). And second, that the Legislature used race as a
predominant factor in choosing where to draw new district lines.
Regarding the first, the Gingles preconditions do not apply here because plaintiffs
bring this action under the Kansas Constitution, not the federal Voting Rights Act. And
in my review, the district court properly applied the equal protection principles set forth
in section 2 of the Kansas Constitution Bill of Rights.
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Congress enacted the Voting Rights Act of 1965 to legislatively enforce the
Fifteenth Amendment to the United States Constitution and end the denial of the right to
vote based on race. Pub. L. No. 89-110, 79 Stat. 437 (1965), as amended, 52 U.S.C. §
10301 et seq. (2018). The language in section 2 of the VRA closely tracked the language
of the Fifteenth Amendment: "[n]o voting qualification or prerequisite to voting, or
standard, practice, or procedure shall be imposed or applied by any State or political
subdivision to deny or abridge the right of any citizen of the United States to vote on
account of race or color." 79 Stat. 437.
Although the VRA's section 2 provided a basis for vote-dilution claims when
passed in 1965, the United States Supreme Court generally continued to analyze vote-
dilution claims under constitutional equal protection principles instead of the VRA over
the next decade. See Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363(1971); Burns v. Richardson, 384 U.S. 73, 86 S. Ct. 1286, 16 L. Ed. 2d 376 (1966);
Fortson v. Dorsey, 379 U.S. 433, 85 S. Ct. 498, 13 L. Ed. 2d 401 (1965). Under these
decisions, a voting district would be unconstitutional under the Fourteenth Amendment to
the United States Constitution if the facts developed in a case established the district, as
drawn, would "minimize or cancel out the voting strength of racial or political elements
of the voting population." Whitcomb, 403 U.S. at 165 (citing Fortson, 379 U.S. at 439,
and Burns, 384 U.S. at 88). And the language used in these cases suggests discriminatory
effects could support a finding of unconstitutional vote dilution.
But in 1980, a plurality of the United States Supreme Court diverged from the
Whitcomb line of cases and held racially discriminatory laws violated the Constitution
only if the laws were enacted with intent to discriminate. City of Mobile v. Bolden, 446
U.S. 55, 65-70, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980). The Court also held section 2 of
the VRA mirrored this constitutional standard. 446 U.S. at 60-61. In response to the
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Bolden plurality, Congress amended section 2 of the VRA in 1982 to expressly ban any
voting practice having a discriminatory effect, even if the practice was enacted for a
nondiscriminatory purpose. Pub. L. 97-205, § 3, 96 Stat. 131, 134 (1982). This amended
section 2 invalidated the Bolden discriminatory intent standard of proof for statutory
racial vote-dilution claims. And because the new statutory discriminatory "results test"
created a lower threshold to prove racial vote-dilution claims, almost all such claims have
since been brought under the VRA.
But as reflected in Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272, 73 L. Ed. 2d
1012 (1982), the 1982 VRA amendment left Bolden's intent requirement untouched in the
context of constitutional racial vote-dilution claims. The Rogers Court held constitutional
minority dilution claims are "subject to the standard of proof generally applicable to
Equal Protection Clause cases." 458 U.S. at 617. The Court also held precedent "made it
clear that in order for the Equal Protection Clause to be violated, 'the invidious quality of
a law claimed to be racially discriminatory must ultimately be traced to a racially
discriminatory purpose.'" 458 U.S. at 617 (citing Washington v. Davis, 426 U.S. 229,
240, 96 S. Ct. 2040, 48 L. Ed. 2d 597 [1976], and Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 50 L. Ed. 2d
450 [1977]). As for Washington and Arlington Heights, the Court noted:
"Neither case involved voting dilution, but in both cases the Court observed that the
requirement that racially discriminatory purpose or intent be proved applies to voting
cases by relying upon, among others, Wright v. Rockefeller, 376 U.S. 52, 84 S. Ct. 603,
11 L. Ed. 2d 512 (1964), a districting case, to illustrate that a showing of discriminatory
intent has long been required in all types of equal protection cases charging racial
discrimination." 458 U.S. at 617 (citing Arlington Heights, 429 U.S. at 265; Washington,
426 U.S. at 240).
The Rogers Court also made clear discriminatory intent can be proved by both
direct evidence and circumstantial evidence:
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"'Necessarily, an invidious discriminatory purpose may often be inferred from the totality
of the relevant facts, including the fact, if it is true, that the law bears more heavily on
one race than another.' Thus determining the existence of a discriminatory purpose
'demands a sensitive inquiry into such circumstantial and direct evidence of intent as may
be available.'" 458 U.S. at 618 (citing Arlington Heights, 429 U.S. at 266).
The Rogers Court ultimately affirmed the lower courts' conclusion that a county's
system of electing its Board of Commissioners at large was maintained with a
discriminatory purpose. And the Court found the courts below properly considered the
extensive circumstantial evidence of illegal purpose even absent direct evidence of intent
to dilute minority votes. Rogers appears to be the last Supreme Court decision applying
the standard for unconstitutional minority vote dilution, but it remains valid today and
adheres to entrenched equal protection constitutional principles.
Here, plaintiffs allege—and the district court found—Ad Astra 2 intentionally
dilutes minority votes in violation of the Kansas Constitution's equal protection and
political power clauses. Kan. Const. Bill of Rights, §§ 1, 2. The district court began by
observing that this court has construed the equal protection guarantees in section 2 to be
broader than the equal protection guarantees found in the Fourteenth Amendment of the
United States Constitution. The district court said this "likely means that a showing of
intent is not required to establish a violation of Sections 1 and 2 of the Bill of Rights."
But the court held it did not need to decide if section 2 had broader protections because
"the parties agree that intentional racial discrimination is unlawful under the Kansas
Constitution." And then, just like the United States Supreme Court in Rogers, the district
court considered a host of relevant factors, made particularized factual findings, and
ultimately found Ad Astra 2 intentionally dilutes minority votes and violates the Kansas
Constitution.
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The majority rejects the district court's analysis, holding the lower court applied
the wrong legal standard. It insists the correct legal standard is described in Gingles,
although it readily concedes the vote dilution claim in Gingles was based solely on the
1982 amendments to the federal VRA. And the majority summarily dismisses any
distinction by declaring that both the constitutional and statutory claims "are undergirded
by the same equal protection principles that preexist the VRA and simultaneously protect
against unlawful minority vote dilution." Slip op. at 43. The majority relies on what
amounts to a fleeting comment in a concurring opinion by Justice Clarence Thomas to
hold the Gingles precondition test, which the Court developed pursuant to and based on
the statutory language of the 1982 amendments to the VRA, is the correct legal standard
to apply in this Kansas Constitution-based minority vote-dilution case. I disagree.
Both the analysis and the holding in Gingles are wholly grounded in the 1982
amendments to the VRA. 478 U.S. at 37-38 (noting the district court decided the
statutory racial vote-dilution claim brought under the VRA did not reach appellees'
constitutional claims). The Court emphasized the distinction between a constitutional
claim and a statutory claim by pointing out the success of a VRA claim does not depend
on an "intent to discriminate against minority voters." 478 U.S. at 44. And since the VRA
requires only a showing of discriminatory effect, the Gingles Court used this three-part
test to connect the effect of the multi-member scheme to the potential remedy: a single-
member district map.
The underlying concepts making up the Gingles test are not constitutionally based
and do not resemble the traditional tiers of scrutiny generally applied to analyze
constitutional claims. Instead, Gingles involved a section 2 VRA challenge to a North
Carolina legislative redistricting plan which created certain multi-member districts with
significant, although not predominant, African-American populations. Plaintiffs sought
smaller single-member districts, some of which would have effective majorities of
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African-American voters. Relying exclusively on the language of amended section 2
(eliminating the intent requirement to establish a statutory violation) and the legislative
history preceding the 1982 amendments, the Gingles plurality consolidated the statutory
vote-dilution inquiry into a three-part test followed by a factual examination of the
totality of the circumstances. But as a precondition to examining the totality of the
circumstances, the Court held plaintiffs had to show (1) the bloc of minority voters was
"sufficiently large and geographically compact" enough to constitute a majority in a
single-member district; (2) the minority voters must be "politically cohesive"; and (3) the
white majority must vote sufficiently as a bloc to defeat minority-preferred candidates.
478 U.S. at 50-51.
Simply put, the Gingles test does not apply in cases, like the one here, when the
vote-dilution claim is based on traditional equal protection principles. Gingles applies
only when a vote-dilution claim is made under the 1982 amendments to the VRA, which
by the very language of the statute requires only a showing of discriminatory effect
resulting from the challenged practice when considering the totality of the circumstances.
The majority disagrees, asserting the distinction between an equal protection vote-
dilution claim without a precondition requirement and a VRA vote-dilution claim with a
precondition requirement is at odds with the Court's guidance in Growe v. Emison, 507
U.S. 25, 39-40, 113 S. Ct. 1075, 122 L. Ed. 2d 388 (1993) (citing Gingles, 478 U.S. at
50-51). But Growe is a straightforward VRA section 2 case and does not consider the
separate and distinct equal protection vote-dilution claim. In Growe, the Supreme Court
held the Gingles preconditions for establishing a vote-dilution claim with respect to a
multimember districting plan are also necessary to establish a vote-fragmentation claim
with respect to a single-member district. In so ruling, the Court determined aggrieved
voters had failed to establish their VRA claim. Again, the Court analyzed the claim under
the VRA and did not consider a separate and distinct equal protection vote-dilution claim.
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The two other cases cited by the majority to support its assertion fare no better.
The majority cites first to Johnson v. DeSoto County Bd. of Comm'rs, 204 F.3d 1335,
1344 (11th Cir. 2000), which stands for the legal proposition that both constitutional
vote-dilution claims and VRA vote dilution claims require a showing that discriminatory
intent caused injury. I agree. The majority also generally cites to Lowery v. Governor of
Georgia, 506 F. Appx. 885 (11th Cir. 2013) (unpublished opinion), which is a VRA case
and inapplicable to my analysis.
I would find the district court properly applied the constitutional vote-dilution
analysis based on its finding of intentional race discrimination and its analysis under
equal protection principles set forth in section 2 of the Kansas Constitution Bill of Rights.
At this point, we should pause to note the majority identifies two kinds of racial
discrimination in redistricting prohibited by the equal protection guarantees found in
section 2 of our Bill of Rights: (1) minority vote dilution; and (2) racially motivated
gerrymandering. And as the plaintiffs clarified during oral arguments, their claim is
intentional minority vote dilution. But the majority analyzes racially motivated
gerrymandering anyway, and in doing so mistakenly concludes the Kansas Constitution is
indistinguishable from the federal VRA. Again, I disagree.
Historically, minority vote dilution and racial gerrymandering cases were distinct
because the constitutionally based dilution line of cases did not, under earlier
interpretations by the United States Supreme Court, require a showing of intent, while a
racial gerrymander did contemplate a showing of intent. See Whitcomb, 403 U.S. at 165
(citing Fortson, 379 U.S. at 439, and Burns, 384 U.S. at 88) (suggesting discriminatory
effects were enough to support a finding of unconstitutional vote dilution). And as
explained above, a racial vote-dilution claim brought under the Constitution (unlike the
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VRA) must now include proof of discriminatory intent, much like the intent required in a
racial gerrymandering claim. See Rogers, 458 U.S. at 616-19.
But despite all of this, an important difference remains—racial vote-dilution
claims require only that discriminatory intent be a motivating factor. On the other hand,
racial gerrymandering claims, which are not at issue here, in some cases require race to
be the predominant factor. See Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475,
132 L. Ed. 2d 762 (1995); Arlington Heights, 429 U.S. at 265-66.
Here, the district court found Ad Astra 2 intentionally dilutes minority voting
power in violation of sections 1 and 2 of the Kansas Constitution Bill of Rights. On
appeal, defendants do not dispute a redistricting plan that intentionally discriminates
based on race violates the Kansas Constitution. And defendants agree the intent element
is satisfied if race was a factor motivating the redistricting. In other words, race need not
be the only factor or even the predominant factor. As defendants say in their brief,
intentional racial discrimination occurs if race "at least in part" motivated the plan. They
also acknowledge discriminatory intent may be proved by either direct evidence or
indirect circumstantial evidence, and evidence of racial animus is unnecessary.
But despite the parties' agreement on the proper standard of proof under the
Kansas Constitution, the majority concludes defendants are wrong and that plaintiffs'
racial gerrymander claim necessarily fails because of a lack of evidence showing "that
race was the predominant factor motivating the Legislature's decision to place a
significant number of voters inside or outside of a particular district." Slip op. at 47. In
support of its conclusion, the majority relies on the racial gerrymander "predominant
factor" test from the U.S. Supreme Court's Miller opinion.
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To the extent racial gerrymandering is even an issue presented, I disagree with the
majority's conclusion that Miller applies to this case. Based on United States Supreme
Court precedent before the VRA, I would hold equal protection guarantees under the
Kansas Constitution require strict scrutiny when purposeful discrimination based on race
is a motivating factor for official state action. See Arlington Heights, 429 U.S. at 265-66.
Under Arlington Heights, "[p]roof of racially discriminatory intent or purpose is required
to show a violation of the Equal Protection Clause." 429 U.S. at 265. And consistent with
the traditional constitutional legal standards relied on by both parties here, Arlington
Heights made clear a plaintiff asserting an equal protection claim need not "prove that the
challenged action rested solely on racially discriminatory purposes" or even that racial
discrimination was "the 'dominant' or 'primary' [purpose]." 429 U.S. at 265. Rather,
plaintiffs need only show "proof that a discriminatory purpose has been a motivating
factor in the decision" to trigger strict scrutiny. 429 U.S. at 265-66.
The Miller Court repeatedly cited the legal principles from Arlington Heights but
ultimately carved out a special exception to the motivating factor test to create a new
predominant factor threshold for racial gerrymandering. The Miller Court substantially
increased the standard of proof to trigger strict scrutiny in race discrimination voting
cases without explanation or justification. And in trying to figure out why the Miller
Court increased the Arlington Heights burden of proof for racial gerrymander claims, one
commentator reasoned:
"Arlington Heights states a rule for laws intended to burden members of historically
disadvantaged groups, and Miller states a rule for laws intended to benefit such groups.
The district challenged in Miller was drawn for the purpose of electing a black
representative, not a white one. In such a case, a racially allocative motive might provoke
strict scrutiny only when that motive eclipses all others and becomes predominant. In a
case where the intent to discriminate against African Americans was a motivating factor
in the drawing of a district, strict scrutiny might apply under the principle of Arlington
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Heights." Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L.
Rev. 493, 545-47 (2003).
Unlike Miller, the racial gerrymander claim addressed by the majority alleges Ad
Astra 2 was passed to burden members of historically disadvantaged groups—not to
benefit them. So there is no justification here to impose the higher "predominant factor"
standard of proof. I do not dispute Miller's "predominant factor" standard is the prevailing
law in federal Fourteenth Amendment equal protection jurisprudence under the
circumstances presented in that case. But as the analysis below shows, this predominant
factor standard cannot prevail under the equal protection guarantees of the Kansas
Constitution.
Let's begin with the text: Section 1 of the Kansas Constitution Bill of Rights
provides that "[a]ll men are possessed of equal and inalienable natural rights, among
which are life, liberty, and the pursuit of happiness." Section 2 provides that "[a]ll
political power is inherent in the people, and all free governments are founded on their
authority, and are instituted for their equal protection and benefit."
Over 130 years ago, the court held, "The bill of rights is something more than a
mere collection of glittering generalities." Atchison Street Rly. Co. v. Mo. Pac. Rly. Co.,
31 Kan. 660, Syl. ¶ 1, 3 P. 284 (1884). These rights are "binding on legislatures and
courts, and no act of the legislature can be upheld which conflicts with their provisions,
or trenches upon the political truths which they affirm." 31 Kan. 660, Syl. ¶ 1. Simply
put, increasing the burden of proof—from showing race as a motivating factor to a
predominant factor—in race discrimination voting cases conflicts with the equal rights
protections in the Kansas Constitution.
As a general rule, a plaintiff who challenges a facially neutral law as a violation of
equal protection must prove discriminatory intent and effect. See Arlington Heights, 429
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U.S. at 264-65; Washington, 426 U.S. at 244-45. In the context of race discrimination, the
definition of intent is self-evident: it occurs when a state engages in conduct with an
intent (or motive) to discriminate against its citizens based on race. In my view, there is
no justification in the Kansas Constitution for failing to strictly scrutinize laws on a
showing that discriminatory intent based on race was a motivating factor for government
action. To hold otherwise allows the government to enact laws motivated by race that
deny its citizens equal protection of the laws without providing a compelling reason for
doing so.
I would hold plaintiffs need only show "proof that a discriminatory purpose has
been a motivating factor in the decision" because the federal predominant factor standard
used by the majority infringes on the equal protection provisions of the Kansas
Constitution. See Arlington Heights, 429 U.S. at 265-66. And again, defendants are on
board with this standard of proof because their primary argument on appeal is that the
district court improperly 'collaps[ed]' the intent and effect elements by considering the
plan's racially discriminatory effects as evidence of racially discriminatory intent."
Consistent with the legal analysis in Arlington Heights, the district court
considered various factors to determine whether plaintiffs satisfied their burden to prove
intentional race discrimination—that race was a motivating factor when drawing the
district lines for Ad Astra 2. The district court's intent analysis considered "the totality of
the circumstances," with a focus on five "particularly relevant" factors:
"(1) whether the redistricting plan has a more negative effect on minority voters than
white voters,
"(2) whether there were departures from the normal legislative process,
"(3) the events leading up to the enactment, including whether aspects of the legislative
process impacted minority voters' participation,
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"(4) whether the plan substantively departed from prior plans as it relates to minority
voters, and
"(5) any historical evidence of discrimination that bears on the determination of intent."
The majority criticizes the district court's consideration of these factors, calling
them "unmoored from precedent"; but the United States Supreme Court in Arlington
Heights identified most of those factors as ones to consider when deciding when race is a
motivating factor for government action. 429 U.S. at 266 ("Determining whether
invidious discriminatory purpose was a motivating factor demands a sensitive inquiry
into such circumstantial and direct evidence of intent as may be available."). This
analysis involves inquiry into factors such as the
"impact of the official action,"
"historical background of the decision,"
"specific sequence of events leading up to the challenged decision,"
"[d]epartures from the normal procedural sequence," and
"legislative or administrative history." 429 U.S. at 266-68.
The factors used by the district court track with United States Supreme Court
precedent and are proper considerations for determining racial discriminatory intent
under section 2 of the Kansas Constitution Bill of Rights.
Substantial competent evidence supports the factual findings
Let's now turn to defendants' argument that the district court's factual findings of
racially discriminatory intent and effect are not supported by substantial competent
evidence.
The district court found, "Ad Astra 2 treats minority votes significantly less
favorably than white voters" in CD 2 and CD 3, even when controlling for partisan
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affiliation. The plaintiffs' expert, Dr. Loren Collingwood, testified Ad Astra 2 treats
minority Democrats even less favorably than it treats white Democrats by removing
minority voters from CD 3 and into CD 2 at a rate of two to one.
Dr. Collingwood conducted a performance analysis that showed Ad Astra 2's
dilutive effect. Under the prior 2012 federal court map, minority voters in CD 3
successfully elected their candidate of choice in 75% of the elections in which racially
polarized voting (RPV) existed. But by moving 45,000 minority voters out of CD 3 into
CD 2, Ad Astra 2 completely dilutes their vote, preventing them from electing their
candidate of choice in any election in which RPV is present. And the 120,000 minority
voters remaining in CD 3 can only elect their candidate of choice in 25% of the elections
in which RPV is present. This means Ad Astra 2 dilutes minority votes in both CD 2 and
CD 3.
Dr. Collingwood's report highlighted how Ad Astra 2 achieved this result—by
intentionally separating a portion of Wyandotte County from CD 3 into CD 2 that is
66.21% minority, over three times the total minority voting age population in CD 3. To
replace these voters, Ad Astra 2 adds counties that are 90.3% white. Dr. Collingwood
testified Ad Astra 2 is among the starkest cuts along racial lines he has ever seen. And the
district court found his testimony credible.
The district court also found Ad Astra 2 "substantively departed from prior plans
as it relates to minority voters," recognizing that Wyandotte and Johnson Counties have
been in the same district in their entirety for 90 of the last 100 years. And courts in
previous redistricting cases explicitly recognized the need to keep Wyandotte County in a
single district to avoid dilution of its minority voting strength. See Essex v. Kobach, 874
F. Supp. 2d 1069, 1086 (D. Kan. 2012); O'Sullivan v. Brier, 540 F. Supp. 1200, 1204 (D.
Kan. 1982).
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Under Ad Astra 2, the district court found "the district lines are carefully tailored
to split the heart of metro Kansas City—and with it nearly a century of tradition—along
its most densely minority neighborhoods." And it went on to detail how the map
"surgically targets the most heavily minority areas" by moving more than 45,000
minority voters in metro Kansas City from CD 3 to CD 2, giving CD 3—previously home
to Kansas' largest minority population—the smallest minority population of any
congressional district in the state.
The district court also found defendants' neutral explanations for the stark racial
divide between CDs 2 and 3 pretextual. And it held Ad Astra 2 does not dilute minority
votes by mistake. In other words, it was intentional.
The district court relied on the following additional evidence of racially
discriminatory intent:
• Dr. Collingwood's analysis showing voting in Kansas is racially polarized
with minority voters favoring Democratic candidates.
• Dr. Jowei Chen generated 1,000 race-blind plans that showed 94.9% of the
neutral plans had a higher minority population than the most Democratic
district in Ad Astra 2.
• Dr. Jonathan Rodden analyzed Ad Astra 2 and found minority voters
moved between districts at a much higher rate than non-minority voters and
placed minority voters in districts with much lower minority populations
than would have occurred under neutral redistricting criteria.
• Remarks during legislative debate revealing the Legislature was "keenly
aware" of how the map would affect minority voters.
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And from this, the district court concluded,
"These factors together all point to the conclusion that the Legislature intended the result
it achieved—districts drawn sharply along racial lines. All of this evidence—the serious
and unique negative treatment of minority Democrats versus white Democrats and white
Republicans, the stark racial divide evident in the map, the procedural and substantive
deviations in the adoption of the plan, the Legislature's awareness of the map's effect on
minority voters, and the statistical unlikelihood that Ad Astra 2's distribution of minority
voters would have occurred absent intent—persuade the Court that the totality of the
testimony and evidence, as well as the inferences fairly drawn therefrom, establish that
Ad Astra 2 was motivated at least in part by an intent to dilute minority voting strength."
To summarize, substantial competent evidence supports the district court's factual
finding that Ad Astra 2 was motivated by an intent to discriminate because of race to
dilute minority voting strength. And from this juncture, the inquiry now turns to whether
the record contains evidence to justify the discriminatory purpose of the law. This means
the burden shifts to the State to demonstrate the legislation is narrowly tailored to achieve
a compelling interest. See Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 18 L. Ed. 2d
1010 (1967) (racial classifications are suspect and subject to the "most rigid scrutiny");
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (same);
Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987) (same).
Plaintiffs' race discrimination allegations were front and center at trial, but
defendants offered no witness testimony or other evidence to demonstrate Ad Astra 2 was
narrowly tailored to achieve a compelling interest. Defendants' attorneys did, however,
appear to offer one race-neutral justification for splitting Wyandotte County in the
manner that it did, although their argument is not evidence.
Counsel sought to justify the map's features based on a legislative intent to keep
Johnson County in a single congressional district as a community of interest. But the
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district court concluded a desire to keep Johnson County whole did not justify shifting
46% of the Black population and 33% of the Hispanic population out of CD 3 and
compensating for that population loss by adding counties southwest of Johnson County
that are 90.3% white. And as noted previously, the district court rejected the Johnson
County justification in the partisan gerrymandering context as well.
Based on the findings of fact, I agree with the district court's conclusion. I find no
evidence in the record from which to conclude Ad Astra 2's intentional discrimination to
dilute minority voting strength based on race was narrowly tailored to achieve a
compelling state interest. And the only race-neutral justification for Ad Astra 2 shown by
the evidence is an intent to engage in partisan vote dilution, which is an invidious form of
discrimination that could not justify the law. And absent the necessary showing, I would
affirm the district court's conclusion that Ad Astra 2 does not survive the appropriate
level of scrutiny and must be redrawn.
Finally, it is important to comment on Justice Rosen's separate dissent in which he
makes a solid case for taking a more expansive view of the protections offered to
Kansans by section 2 of our Bill of Rights beyond those the majority embraces under
federal Fourteenth Amendment jurisprudence. In my view, it is unnecessary here to
incorporate his analysis to invalidate Ad Astra 2 for the reasons explained. In this
litigation, all parties agreed intentional discrimination is prohibited by our Kansas
Constitution Bill of Rights, and neither the text of our Constitution nor our state caselaw
adopts a contrary view. But Justice Rosen's reasoning remains quite sound, if
unnecessary under these facts. Regardless, his dissent simply bolsters my condemnation
of Ad Astra 2.
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CONCLUSION
Before wrapping up, I need to mention one other thing bothering me: the Solicitor
General commented in his brief about Judge Klapper's political party affiliation as a
Democrat. The Solicitor General noted Judge Klapper was elected as a district court
judge in Wyandotte County in 2018 as a member of the Democratic Party and would be
up for reelection this year. His suggestion seemed to be this was somehow relevant
within the totality of the circumstances. He went on write that "forcing judges to play
referee" with politicians inevitably leads to questions about their impartiality, and "all the
more so where, as here, the judge was elected by partisan election as a member of the
party in whose favor the call went." (Emphasis added.)
When asked about this at oral argument, the Solicitor General said, "We think it is
a relevant fact that the case was decided by an elected partisan judge." Adding, "And it is
the case that in this case the plaintiffs chose to file the case in a district where the . . .
partisan elected judges are all members of the Democratic Party." He then made the
point, "The district judge . . . basically wholesale adopted the findings and facts and
conclusions of law that were submitted by the plaintiffs. . . . He essentially made virtually
every ruling on contested issues of fact and law in favor of the plaintiffs."
Curiously, there was no mention a Republican governor initially appointed Judge
Klapper to the district court bench to fill a mid-term vacancy in September 2013. He was
then elected to full terms in both 2014 and 2018. And I would think if an argument like
this had any proper purpose, this missing background might be meaningful. But to be
clear, there is nothing in this court record or anything written by any member of this court
raising any credible notion Judge Klapper ruled as he did based on political sympathies
instead of his good-faith view of the evidence and the law.
103
The Solicitor Division represents the State in civil and criminal appeals. From my
experience, it does so professionally. And I would be the first to concede inartful or
foolish things are said in high-profile litigation. But make no mistake, this is playing with
dangerous stuff. It has no place as advocacy in a Kansas courtroom without a very solid
factual foundation that is wholly lacking here. See MacDraw, Inc. v. CIT Grp. Equip.
Fin., Inc., 157 F.3d 956, 963 (2d Cir. 1998) ("It is intolerable for a litigant, without any
factual basis, to suggest that a judge cannot be impartial because of his or her race and
political background."); see also State v. Logan, 236 Kan. 79, 88, 689 P.2d 778 (1984)
(holding it would be "too far-reaching" to conclude judge had a "prosecution bias"
because judge's son worked in a district attorney's office); Higganbotham v. Oklahoma ex
rel. Oklahoma Transp. Com'n, 328 F.3d 638, 644 (10th Cir. 2003) (finding judge's
recusal not warranted even though judge's son was married to governor's daughter, judge
and governor were of the same political party, and governor was instigating political
force behind the dispute); Bryce v. Episcopal Church in the Diocese of Colorado, 289
F.3d 648 (10th Cir. 2002) (affirming trial judge's decision not to recuse even though
judge was an Episcopal Church member and defendant was an Episcopal church.);
Karim-Panahi v. U.S. Congress, 105 Fed. Appx. 270, 274-75 (D.C. Cir. 2004)
(unpublished opinion) (affirming denial of recusal based on allegations judge was "biased
because of her 'political-religious connections' and her alleged loyalty to those who
selected, confirmed and appointed her"); United States ex rel. Hochman v. Nackman, 145
F.3d 1069, 1076-77 (9th Cir. 1998) (fact judge contributed to law school alumni
association at university affiliated with medical clinic did not require recusal in action by
clinic employees alleging false claims by clinic administrators); Sierra Club v. Simkins
Indus., Inc., 847 F.2d 1109, 1117 (4th Cir. 1988) (judge's past Sierra Club membership
before appointment did not require recusal from case in which Sierra Club was a party);
United States v. State of Ala., 828 F.2d 1532, 1543 (11th Cir. 1987) (preappointment
views expressed by judge as a political figure and state senator did not indicate he
prejudged the legal question).
104
For the reasons explained, I would affirm the district court ruling invalidating Ad
Astra 2. It violates plaintiffs' right to equal protection of the laws by targeting them and
other similarly situated Kansans by intentionally diluting their voting strength, without
any other appropriate, evidence-backed rationale to explain the redistricting choices
made. Moreover, Ad Astra 2 unconstitutionally discriminates against Kansans by using
race as a motivating factor in drawing the district lines.
ROSEN, and STANDRIDGE, JJ., join the foregoing concurring and dissenting
opinion.
105