Rivera v. Schwab

• Decision Date: 21 June 2022
• Docket Number: 125,092
• 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

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

June 21, 2022

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.

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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.

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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.

Decision announced May 18, 2022.

Appeal from Wyandotte District Court; Bill Klapper, judge. 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. McCallister, of Dentons U.S. 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.

OPINION

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,...