Essex v. Kobach
| Decision Date | 07 June 2012 |
| Docket Number | Civil Action No. 12–4046–KHV–JWL. |
| Citation | 874 F.Supp.2d 1069 |
| Parties | Robyn Renee ESSEX, Plaintiff, Benjamin D. Craig, et al., Intervenor Plaintiffs, v. Kris W. KOBACH, Kansas Secretary of State, Defendant, State of Kansas, Intervenor Defendant. |
| Court | U.S. District Court — District of Kansas |
OPINION TEXT STARTS HERE
Brent E. Haden, Haden & Byrne LLC, Columbia, MO, Jonathon E. Boatman, Michael K. Avery, McAfee & Taft, PC, Oklahoma City, OK, for Plaintiff.
Brent E. Haden, Haden & Byrne LLC, Columbia, MO, Michael K. Avery, McAfee & Taft, PC, Oklahoma City, OK, for Plaintiff.
Mark P. Johnson, Wade P. K. Carr, SNR Denton US, LLP, Kansas City, MO, Aaron M. Kroll, Gregory L. Musil, Jay E. Heidrick, Polsinelli Shughart PC, Eldon J. Shields, Steven Robert Smith, Gates, Shields & Ferguson, PA, Carson M. Hinderks, James P. Zakoura, Smithyman & Zakoura, Chtd., J. Nick Badgerow, Lindsay Todd Perkins, Michael F. Delaney, Spencer Fane Britt & Browne LLP, W. Greg Wright, Beam-Ward, Kruse, Wilson, Wright & Fletes, LLC, Audrey L. Snyder, Overland Park, KS, Clinton E. Patty, Eric I. Unrein, John C. Frieden, Kevin M. Fowler, Frieden, Unrein & Forbes LLP, Elizabeth R. Herbert, Pedro L. Irigonegaray, Irigonegaray & Associates, Topeka, KS, James D. Oliver, Toby Crouse, Foulston Siefkin LLP, John J. Diehl, Armstrong Teasdale LLP, St. Louis, MO, Ricardo A. Kolster, Tyson H. Ketchum, Armstrong Teasdale LLP, Bryant T. Lamer, Spencer Fane Britt & Browne LLP, Kansas City, MO, Michael R. O'Neal, Gilliland & Hayes, PA, Hutchinson, KS, F. James Robinson, Jr., Hite, Fanning & Honeyman, L.L.P., Wichita, KS, John J. Rubin, John J. Rubin, Attorney at Law, Charles W. Macheers, Charles W. Macheers, LLC, Shawnee, KS, for Intervenor Plaintiffs.
Kris W. Kobach, Secretary of State, Ryan A. Kriegshauser, Kansas Secretary of State, Topeka, KS, for Defendant.
Jeffrey A. Chanay, Martha M. Snyder, Office of Attorney General, Topeka, KS, Stephen R. McAllister, Thompson Ramsdell & Qualseth, PA, Lawrence, KS, for Intervenor Defendant.
Before KATHRYN H. VRATIL, Chief District Judge, MARY BECK BRISCOE, Chief Judge of the Tenth Circuit, and JOHN W. LUNGSTRUM, District Judge.
Under the state Constitution, every ten years, the Kansas legislature must draw new districts for the United States Congress, the Kansas Senate, the Kansas House of Representatives and the Kansas Board of Education.1 Since the 2010 decennial census, the legislature has failed to approve new maps. While legislators publicly demurred that they had done the best they could, the impasse resulted from a bitter ideological feud—largely over new Senate districts. The feud primarily pitted GOP moderates against their more conservative GOP colleagues. Failing consensus, the process degenerated into blatant efforts to gerrymander various districts for ideological political advantage and to serve the political ambitions of various legislators. Consequently, for reasons explained below, this Court is left to the task of approving or creating plans to redistrict the United States Congress, the state Senate, the state House of Representatives and the state Board of Education. The Secretary of State advised us of the June 11, 2012 filing deadline that candidates for Congress, the state legislature and the Kansas Board of Education face, and we have endeavored to complete this order as expeditiously as possible to permit that deadline to remain in place.
Anticipating the legislative default which eventually occurred, plaintiff brought suit against the Kansas Secretary of State, seeking to enjoin him from conducting the 2012 elections under existing state law. Specifically, she alleged that the 2002 districts are now unconstitutional because of population shifts documented by the 2010 census, which caused existing districts to become unequal in population and thus violate the constitutional requirement of one person, one vote. At the hearing and in their pleadings, all parties have stipulated that the existing districts are unconstitutional. The Court agrees. 2
Plaintiff's suit is authorized under 42 U.S.C. § 1973j(f), and a three-judge panel has been appointed to hear it under 28 U.S.C. § 2284(a). 3
All parties now call upon the federal court to do in very short order what the legislature failed to accomplish in two regular sessions. Exercising its jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(4), the Court therefore assumes the “unwelcome obligation” of performing in the legislature's stead. Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977).
The Kansas legislature consists of 40 single-member senatorial districts 4 and 125 single-member state representative districts. 5 Congress has issued a certificate of entitlement to the Kansas Secretary of State stating that Kansas is entitled to four congressional districts in the 2012 elections. These numbers remain unchanged from ten years ago.
Every ten years, subject to the governor's approval, the Kansas legislature must redistrict the congressional, state Senate and state House districts.6 The Kansas Supreme Court must evaluate new legislative districts after their enactment. Kan. Const. art. 10, § 1(b). Redistricting is primarily a matter for the legislature to consider and determine, but if a legislature fails to redistrict in a timely fashion after having a chance to do so, federal courts are called upon for relief. See White v. Weiser, 412 U.S. 783, 794–95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). As judges, we do not tread unreservedly into this political thicket. Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). The Court acts only because it must—as it did in 1982.7
According to the 2010 census, Kansas has a population of 2,853,118. 8 Dividing the 2012 population into four congressional districts, the average congressional district should contain 713,280 persons.
For purposes of state rather than federal districting, the Kansas Constitution requires that the Secretary of State adjust the total state population by excluding nonresident military personnel stationed within Kansas and nonresident students attending colleges and universities within Kansas. Conversely, it includes military personnel within the state who are residents of Kansas and students attending colleges and universities within the state who are residents of the state. The included individuals are counted in the district of their permanent residence. Kan. Const. art. 10, § 1(a). The total adjusted population of Kansas is 2,839,445. Thus the ideal population for each Kansas Senate district is 70,986 and the ideal population for each Kansas state House district is 22,716. Article 6 of the Kansas Constitution requires the Kansas legislature to establish districts for the Kansas State Board of Education, with each district consisting of four contiguous Kansas Senate districts. Kan. Const. art. 6, § 3. Based on the total adjusted population, the ideal population for each Kansas State Board of Education district is 283,944.
As noted, the Kansas legislature had advance notice that it had to draw new districts for the 2012 elections, and it began the redistricting process in 2011. Each body appointed a redistricting committee 9 and the chairpersons of each committee (Senator Tim Owens and Representative Mike O'Neal) co-chaired a joint Special Committee on Redistricting. The Special Committee conducted six days of public hearings in 2011.10 In January of 2012, the House and Senate adopted written “Guidelines and Criteria for 2012 Kansas Congressional and Legislative Redistricting” (“the Guidelines”). The House Redistricting Committee conducted hearings from June 1, 2011, through May 17, 2012, and the Senate Reapportionment Committee conducted hearings from January 18 through May 11, 2012.
For congressional redistricting, the Guidelines state that:
1. The basis for congressional redistricting is the 2010 U.S. Decennial Census as published by the U.S. Department of Commerce, Bureau of the Census. The “building blocks” to be used for drawing district boundaries shall be Kansas counties and voting districts (VTDs) as their population is reported in the 2010 U.S. Decennial Census.
2. Districts are to be as nearly equal to 713,280 population as practicable.
3. Redistricting plans will have neither the purpose nor the effect of diluting minority voting strength.
4. Districts should attempt to recognize “community of interests” when that can be done in compliance with the requirement of guidelines No. 2.
a. Social, cultural, racial, ethnic and economic interests common to the population of the area, which are probable subjects of legislation (generally termed “communities of interest”), should be considered.
b. If possible, preserving the core of the existing districts should be undertaken when considering the “community of interests” in establishing districts.
c. Whole counties should be in the same congressional district to the extent possible while achieving population equality among districts. County lines are meaningful in Kansas and Kansas counties historically have been significant political units. Many officials are elected on a countywide basis, and political parties have been organized in county units. Election of the Kansas members of Congress is a political process requiring political organizations which in Kansas are developed in county units. To a considerable degree most counties in Kansas are economic, social and cultural units, or parts of a larger socioeconomic unit. These interests common to the population of the area, generally termed “community of interests” should be considered during the creation of congressional districts.
5. Districts should be as compact as possible and contiguous, subject to the requirement of guideline No. 2.
The guidelines state the following for legislative redistricting:
1. The basis for legislative redistricting is the 2010 U.S. Decennial Census as recalculated by the...
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