Rivera v. Schwab

• Decision Date: 18 May 2022
• Docket Number: 125,092
• Citation: 315 Kan. 877,512 P.3d 168
• Parties: 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.
• Court: Kansas Supreme Court

315 Kan. 877
512 P.3d 168

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.

No. 125,092

Supreme Court of Kansas.

Decision announced May 18, 2022.
Opinion filed June 21, 2022.

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. McCallister, 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, wer e on the b riefs for appellees Tom Alonzo et al.

No appearance by Jamie Shew, appellee.

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.:

512 P.3d 173

315 Kan. 880

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

315 Kan. 881

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 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

315 Kan. 882

equal in population as practical; (3) the plan should

512 P.3d 174

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.

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

315 Kan. 883

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 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...