In re Schmidt

315 Kan. 864

512 P.3d 220

In the MATTER OF the Petition of Derek Schmidt, Attorney General, to Determine the VALIDITY OF Substitute for SENATE BILL 563.

No. 125,083

Supreme Court of Kansas.

June 21, 2022

Derek Schmidt, attorney general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Brant M. Laue, solicitor general, Dwight R. Carswell, deputy person general, Shannon Grammel, deputy solicitor general, and Kurtis K. Wiard, assistant solicitor general, were with him on the petition and briefs for petitioner.

Mark P. Johnson, of Dentons US LLP, of Kansas City, Missouri, argued the cause, and Stephen R. McAllister, of the same firm, was with him on the brief for intervenor Senator Thomas Holland.

The opinion of the court was delivered by Stegall, J.:

For the first time in 20 years our court, as required by the Kansas Constitution, is called on to review state reapportionment legislation for compliance with state and federal law. Article 10, section 1 imposes on us a duty to review the Kansas State House and Kansas State Senate reapportionment maps contained within Substitute for Senate Bill 563 (Sub. SB 563) to ensure the district lines are "valid." We hold those maps contain no constitutional errors.

FACTUAL AND PROCEDURAL BACKGROUND

Kansas has 40 senatorial districts and 125 representative districts. Kan. Const. art. 2, § 2 ; K.S.A. 4-101. Last year, the Kansas Legislature began the process of preparing to redraw those districts according to the 2020 Census. Through in-person and virtual meetings, the House and Senate Committees on Redistricting held a listening tour of 18 town hall meetings across the state. All meetings were live-streamed, and the public was invited to submit written and/or oral testimony.

Also playing a role in the process is the document known as "the Guidelines." The Proposed Guidelines and Criteria for 2022 Kansas 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.

The Senate Committee on Ways and Means introduced SB 563 on March 14, 2022, which contained proposed maps for both the Senate and House of Representatives. After it was introduced, the bill was referred by the Senate Vice President (under the authority of the Senate President) to the Senate Committee on Redistricting. The report of the Senate Committee on Redistricting recommended that Sub. SB 563 be adopted as amended. On March 16, the Senate Committee of the Whole adopted the report of the Senate Committee on Redistricting and then proceeded to debate Sub. SB 563. Further proposed amendments to Sub. SB 563 were all rejected. Sub. SB 563 was considered on final action on March 17. The Senate passed Sub. SB 563 by a vote of 28 to 8 (23 Republicans and 5 Democrats voting in favor; 4 Democrats and 4 Republicans opposed).

The House of Representatives then received Sub. SB 563 from the Senate. Sub. SB 563 was referred to the Committee of the Whole on March 21, 2022. The Committee of the Whole amended Sub. SB 563 to switch to the House's preferred map for representative districts. Sub. SB 563 was then advanced to final action. On March 23, the House passed Sub. SB 563 as amended by a vote of 112 to 9 (78 Republicans and 34 Democrats voting in favor; 6 Republicans and 3 Democrats opposed).

Thus, the two maps at issue here—colloquially known as the Kansas State Senate map "Liberty 3" and the Kansas State House map "Free State 3F"—were approved by bipartisan majorities.

On March 28, 2022, the Senate nonconcurred in the House's amendments and requested a Conference Committee be appointed. The House acceded. The President of the Senate and Speaker of the House appointed their respective chamber's members of the Conference Committee. The Conference Committee issued its report on March 30, and that same day, the Senate adopted the Conference Committee report by a vote of 29 to 11 (25 Republicans and 4 Democrats voting in favor; 4 Republicans and 7 Democrats opposed). The House adopted it by a vote of 83 to 40 (80 Republicans and 3 Democrats voting in favor; 36 Democrats and 4 Republicans opposed). The legislative record reveals that some of the votes changed between the first vote described above to the March 30 vote due to the Conference Committee's addition to Sub. SB 563 of the State Board of Education Map (which is not at issue in this matter).

Sub. SB 563 was then enrolled and presented to Governor Laura Kelly on April 8, 2022. Governor Kelly signed Sub. SB 563 into law on April 15, and the Secretary of State published Sub. SB 563 in the Kansas Register on April 21.

On April 25, Attorney General Derek Schmidt petitioned our court to determine the validity of Sub. SB 563, as required by Article 10, section 1(b). The petition initiates a unique original action in the Kansas Supreme Court. This one-of-a-kind action is "not technically an adversary proceeding" even though there may be persons in opposition to the apportionment. In re Senate Bill No. 220 , 225 Kan. 628, 629-30, 593 P.2d 1 (1979). Once the petition was filed, we entered a scheduling order permitting interested persons to present their view by submitting a written statement, as required by Kansas Constitution article 10, section 1 (d). The scheduling order also provided directions for any person wishing to file a motion to intervene or file an amicus brief.

This court received one motion to intervene from Senator Thomas Holland, a Democrat from Baldwin City, who has served Senate District 3 since 2009. As a result of the redrawn boundaries in Sub. SB 563, Senator Holland now lives in District 9, where incumbent Republican Senator Beverly Gossage currently serves. Senator Holland contests the procedure by which Sub. SB 563 was enacted and the new boundaries of Districts 3 and 9.

DISCUSSION

Article 10, section 1 of the Kansas Constitution provides:

"(a) At its regular session in 1992, and at its regular session every tenth year thereafter, the legislature shall by law reapportion the state senatorial districts and representative districts on the basis of the population of the state as established by the most recent census of population taken and published by the United States census bureau....

"(b) Within 15 days after the publication of an act reapportioning the legislative districts within the time specified in (a), the attorney general shall petition the supreme court of the state to determine the validity thereof. The supreme court, within 30 days from the filing of the petition, shall enter its judgment. Should the supreme court determine that the reapportionment statute is invalid, the legislature shall enact a statute of reapportionment conforming to the judgment of the supreme court within 15 days.

"(c) Upon enactment of a reapportionment to conform with a judgment under (b), the attorney general shall apply to the supreme court of the state to determine the validity thereof. The supreme court, within 10 days from the filing of such application, shall enter its judgment. Should the supreme court determine that the reapportionment statute is invalid, the legislature shall again enact a statute reapportioning the legislative districts in compliance with the direction of and conforming to the mandate of the supreme court within 15 days after entry thereof.

"(d) Whenever a petition or application is filed under this section, the supreme court, in accordance with its rules, shall permit interested persons to present their views."

To determine whether a reapportionment act is "valid" under Article 10, section 1(b), we "examine both the procedure by which the act became law and the substance of the apportionment act to determine that it satisfies constitutional requirements." In re House Bill No. 3083 , 251 Kan. 597, 601, 836 P.2d 574 (1992) (quoting In re Substitute for House Bill No. 2492 , 245 Kan. 118, Syl. ¶ 1, 775 P.2d 663 [1989] ). We evaluate the act for substantive compliance under both the federal and state Constitutions. To do this, we (1) ensure the act comports with the "one person one vote" standard; and (2) ensure the act does not invidiously discriminate.

We also consider the legislation's validity under the federal Voting Rights Act (VRA)—even if no objection has been raised on that ground—because Article 10 directs us to determine the Act's "validity," which we have said does not limit our automatic review to only constitutional issues. In re House Bill No. 3083 , 251 Kan. at 610, 836 P.2d 574. The VRA protects against certain kinds of minority vote dilution in a redistricting plan. Just because a plan satisfies the one person one vote standard, we will not assume it "is safe from a successful challenge if it has discriminated against minorities." 251 Kan. at 610, 836 P.2d 574.

In the past, we have indicated that invidious discrimination may include discrimination based on political party. See In re House Bill No. 2620 , 225 Kan. 827, Syl. ¶ 4, 595 P.2d 334 (1979) ("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."). So the reader may legitimately wonder whether claims of political gerrymandering in state maps are justiciable under Article 10, section 1, after our decision today in Rivera v. Schwab , 315 Kan. ––––, 512 P.3d 168 (No. 125,092, this day decided), slip op. at 35-36 (holding that such claims are nonjusticiable in the context of a congressional map). But we expressly decline to reach that question here as it is not necessary to the outcome since there are no colorable claims of political gerrymandering and a review of the record reveals no significant evidence of line...