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Is redistricting in Kansas and beyond simply partisan by nature?

The last two rounds of redrawing legislative and congressional boundaries in Kansas proved especially contentious. In 2012, the job fell to federal judges when lawmakers couldn’t agree. Is there a less contentious way to do redistricting than letting legislators choose their own constituencies? Or is the process simply partisan by nature?

 

It sounds straightforward: Every 10 years, after the federal census, Kansas lawmakers redraw the state’s political boundaries to balance out changes in population

In practice, however, it’s been a fraught process.

Members of the Legislature are responsible for redrawing the boundaries for U.S. representatives, the State Board of Education and the borders for their own House and Senate districts. The governor gets a say with a signature or veto, as with any other bill, and the Kansas Supreme Court is asked to review state legislative district maps too.

For the last two rounds, the process has gotten ugly. Redistricting after the 2000 Census was so bitter that state lawmakers narrowly avoided having a panel of three federal judges draw the state’s maps – a fate they couldn’t escape 10 years later.

Increased political divisiveness, a population that’s becoming more urban and less rural, and technological advances that make it easier to gerrymander districts have greatly raised the stakes. 

With a history of tying the Sunflower State in knots, the 2021-22 redistricting process began in earnest with a series of 14 town hall meetings in five days this August. A few days after the tour, the U.S. Census Bureau released new population data showing 80 of the state’s 105 counties had lost population.

Among the implications of the data: Johnson County and Wichita will gain political clout in the Legislature at the expense of rural Kansas, and the 3rd Congressional District will have to be redrawn to account for Johnson and Wyandotte counties being too big to be wholly contained in one district.

Republican leaders in the House say they’ll continue to seek public input in the map drawing process, but partisan dividing lines had taken shape prior to the town halls. Democrats saw the compressed timeframe as evidence of an untrustworthy process aimed at producing maps that will cost Rep. Sharice Davids her seat in Congress and bolster the Republican super-majority in the Kansas Legislature in 2022. Republicans see a Democratic Party that is politicizing the redistricting process with the public to pressure lawmakers into passing maps friendly to the left.

Meanwhile, groups representing the state’s African American and Latino communities worry that the process could “disenfranchise hundreds of thousands of Kansans and undermine their faith in those who will be elected to represent them,” the Kansas Hispanic and Latino American Affairs Commission and the Kansas African American Affairs Commission said in a rare joint statement.

 The stage is set for a messy and increasingly partisan redistricting battle over the next few months. But does reapportionment have to be this way? Kansas’ method to draw maps isn’t unusual. It’s highly politicized almost everywhere. But a handful of states think they have found less contentious ways, including the establishment of independent and nonpartisan commissions that draw district lines.

Such commissions have been floated as an answer for stabilizing democracy. Gov. Laura Kelly expressed her support last year, and Kansas Democrats filed legislation to establish a commission, but the effort was largely symbolic.

The proposal was a non-starter in the Legislature, where Republicans would be sacrificing their own power to hand it over to an unelected commission. Furthermore, Republican operatives in the state have long translated “nonpartisan” as a code word for letting Democrats muscle in on the process.

 

  • Kansas Senate President Ty Masterson, an Andover Republican, says he’s expecting court intervention no matter how the Legislature draws its redistricting maps.
THE WILL OF THE PEOPLE AS A ‘GUIDING LIGHT’

Of the nine states that use commissions made up of independent and nonpartisan members to draw legislative districts, six of them went for Joe Biden in the 2020 presidential election. But it’s hard to discern a political pattern on a list that features Alaska, Arizona, California, Colorado (which has separate commissions for its House and Senate), Hawaii, Idaho, Michigan, Montana and Washington.

A few other states have what are called politician redistricting committees that draw electoral maps. 

These commissions aren’t especially independent because politicians can be appointed to serve, but there is a degree of separation from lawmakers being able to effectively choose their own constituencies.

Iowa has gone its own way. There, nonpartisan legislative staff develop maps without political or election data and work with a five-person advisory commission. Legislators still get to weigh in with an up-or-down vote. 

According to the National Conference of State Legislatures, Iowa lawmakers have approved at least some version of nonpartisan staff-drawn maps every decade since 1980.

 Still, that’s only 15 of the 50 states with nontraditional mechanisms in place. With so few states using them, are nonpartisan commissions really all they’re cracked up to be?

Yurij Rudensky, an expert on redistricting with the Brennan Center for Justice, a nonpartisan think tank generally seen as left-leaning, says the answer is unequivocally yes.

“The thing about something like redistricting is, ultimately, the way that people should think about it is not … Democrats versus Republicans or moderates versus more hardline conservatives or hardline liberals, but more between political interests versus public interests,” he says.

Where independent commissions can succeed is by taking away the ability of lawmakers and parties to chart their own futures.

The prime example of success with independent redistricting, Rudensky says, has been California. The 14-member commission there makes sure the varying interests of Californians are adequately addressed by taking its show on the road. 

“The commissioners sort of decided that they would listen to the people, and that their primary instructions would come from regular Californians. … They held extensive hearings across the state in conservative areas and in liberal areas, and they let that guide the process,” he says. “What people informed the commission about was why their community should not be split up in ways that would prevent that community from having a voice in Sacramento and in Washington, D.C.”

The will of the people is the guiding light for redistricting in California and in the other states that use an independent commission model, Rudensky says. And that’s the way it should be if the public truly wants the process to be fair.

“They weren’t protecting incumbents, they weren’t trying to ensure that X number of Democrats and Y number of Republicans were in the Legislature or in the congressional delegation, they just went out there,” he says. “They wanted to give people representation and to make sure that the people could vote out leadership that they didn’t feel like was reflecting their views.”

It’s also easy to see that California’s model worked as intended, Rudensky says. In 2018, the state saw more of a blue wave, in line with national voter trends, while in 2020, it saw the election of more Republicans to Congress – especially in the House, which was a trend seen nationwide.

A 2012 analysis from the Pew Charitable Trusts found that the states with independent commissions drew more compact and contiguous districts at the local and state levels than those where legislators control the process – a telltale sign of gerrymandering avoidance. 

Yet that analysis also revealed one of the more prominent arguments against independent commissions: They don’t succeed in tamping partisan rancor. In Colorado, for example, a commission member who was appointed as an independent member triggered an uproar after being seen at a 2012 fundraiser for President Barack Obama. 

Bob Loevy, a professor emeritus of political science at Colorado College, served as a Republican member of the state’s reapportionment commission in 2011-12. He later published a 104-page analysis of the group’s processes, and concluded that even though the commission was purported to be independent, its product was riddled with gerrymandering because Democrats had a one-member edge in commission voting. (The group’s chairman, Loevy says, functioned as a Democrat.) 

Loevy says it’s to be expected that Democrats would take advantage of the situation. If one party doesn’t gerrymander districts for itself, the other will, he says. 

Colorado overwhelmingly approved changes in 2018 that could address some of the issues raised by Loevy. Half of the members of the state’s two commissions are to be chosen randomly and half by judges, not politicians. Previously, the Legislature and the governor appointed a majority of the members.

Furthermore, eight of the 12 members on each commission, including at least two unaffiliated members, will need to vote in favor of a new map for it to be approved. Under the old commission system, it took a simple majority.

Colorado’s reforms will be closely watched to see if it’s actually possible to make redistricting less politically partisan. But the proceedings are off to a contentious start that included a complaint about improper partisan lobbying.

Advocates of the commissions say eliminating partisanship isn’t the primary objective. It’s taking control away from legislators, who have a personal stake in the outcome of those new electoral boundaries.

(Interestingly enough, some Democrats are starting to regret their support for independent redistricting commissions, especially in increasingly blue states like Colorado because they’re leading to maps that could water down Democrat power.)   

 

 

NO WAY TO BE ‘UNBIASED’

The idea of an independent, nonpartisan commission to draw Kansas’ maps isn’t a novel one.

It gained popularity in some Republican circles after the bitterness of the 2001-2002 redistricting cycle that nearly required court intervention and left elected officials embarrassed, according to news reports.

Republican Derek Schmidt – then a senator, now Kansas’ attorney general – proposed the idea of a semi-independent commission to draw the state’s electoral districts in 2003. It would’ve comprised seven members appointed by the governor, chief justice of the Kansas Supreme Court, chief judge of the Kansas Court of Appeals, the state Senate president and minority leader, and the House speaker and minority leader.

News reports from the time show that Schmidt’s proposal gained traction but fell well short of the two-thirds majority required to put the issue to voters as an amendment to the state’s constitution. Schmidt and a bipartisan group of legislative leaders tried again in 2009 to adjust the process. Under that proposal, the Legislative Research Department would have used census data and other criteria to redraw districts, and then a five-member commission would have been appointed to resolve questions raised by researchers. Two members would be Democrats and two would be Republicans, with the fifth commissioner chosen by the other four.

The 2009 iteration of a redistricting commission, which had bipartisan support in the Senate and the backing of the House minority leader, also failed to advance. 

Mike O’Neal, a Republican who served in the House for nearly 30 years representing Hutchinson, was the chairman of his chamber’s redistricting efforts in both 2002 and 2012. He remains opposed to the concept of independent redistricting commissions. 

“I just think redistricting is uniquely a process that needs to involve lawmakers, and I’ve never seen an ‘independent redistricting commission’ that was independent,” he says. “They are appointed with political appointments, and they all tend to have their own agendas.”

O’Neal dismissed one of the main arguments for independent commissions – that legislators shouldn’t have such a powerful role in something they have a personal stake in – by saying that no one can truly be unbiased. 

“No commission … is going to be free of their own personal biases. I think the process has worked very well and I think it’s poised to work well again, if you’ve got lawmakers who are committed to being fair and trying to get maps that have the greatest chance of passing,” O’Neal says. “No one knows their districts any better than those 165 lawmakers. They are far better able to know the communities of interest, and the nuances of their districts and natural boundaries … than a nonpartisan commission.”

Eighteen years after starting the conversation, Schmidt, who as attorney general bears the responsibility for petitioning the Kansas Supreme Court to determine the validity of new state-level maps, says through a spokesman that forming a nonpartisan redistricting commission isn’t feasible for the upcoming round of redistricting.

“Article 10 of the Kansas Constitution requires the Legislature, not a commission, to reapportion legislative districts,” spokesman John Milburn says. “It is too late in the current redistricting cycle to change that constitutional process.”

Milburn wouldn’t say whether Schmidt still supports the idea of a redistricting commission or other alternatives to reduce partisan gamesmanship.

Kansas’ last round of redistricting, like in 2002, was a bitter legislative battle that stretched over a year after the state received census data in March 2011, reaching a conclusion in June 2012.

The Legislature adjourned in May 2012 with no agreement on legislative and congressional districts, throwing the matter to the U.S. District Court for Kansas. A month later, a three-judge panel issued the new maps while criticizing what legislators a decade earlier had narrowly approved.

In its ruling, the panel said it “tried to restore compact, contiguous districts where possible” and said it was “pushing a reset button” on redistricting in Kansas. That approach carried some significant side effects. For instance, the court’s maps placed 46 Kansas House members – nearly 37% of that governing body – into districts that generated multi-incumbent races in the next election cycle.

The debate over redistricting in 2012 was driven less by partisanship and more by intraparty warfare between moderate Republicans in control of the Senate and conservatives who wanted to unseat them. The effort proved largely successful, and conservative Republicans easily control both the House and Senate today. 

All told, Schmidt’s office doesn’t see this round of redistricting looking anything like the last one.

“In 2012, the Legislature failed to perform its constitutional duty to redistrict, and a federal court had to step in, burdening Kansas taxpayers with almost $400,000 in legal costs,” Milburn says. “AG Schmidt is optimistic this time the Legislature will get the job done, and he is prepared to present the Legislature’s work to the Kansas Supreme Court for approval as the constitution provides.”

 

FEARS OF GERRYMANDERING

In years past, key Republican officials have been vocally opposed to implementing a redistricting commission. Mike Kuckelman, chairman of the Kansas Republican Party, said earlier this year that legislators should just follow the laws that are on the books.

“If there should be an independent commission, there should be legislation to that effect,” he adds. “But otherwise, follow the statute and get the redistricting done according to statute.”

Kansas isn’t known as a state with a history of pervasive gerrymandering. But one current Republican desire became clear last October when then-Senate President Susan Wagle, a Wichita Republican, told a group of Republican activists that having a Republican supermajority during redistricting could make it difficult for Davids, Kansas’ only Democrat at the federal level, to hold her seat.

“I guarantee you we can draw four Republican congressional maps,” Wagle said. “But we can’t do it unless we have a two-thirds majority in the Senate and House.”

Kelly immediately highlighted Wagle’s comments as proof of the need for Kansas to institute an independent commission to draw new maps for the Sunflower State every 10 years.

Republicans have wide latitude to do as they wish, though. The veto-proof GOP majority Wagle envisioned came to pass as Kansas Republicans gained several seats in the House and Senate, hemming in any leverage the state’s Democrats might have in the process.

The results of last year’s congressional elections, in which Democrats managed to hold on to their House majority by just five seats, have drawn enormous national attention to districts like Davids’. It’s possible that Republicans could pick up six seats next year and flip control solely through the use of the gerrymander. But concerns over gerrymandering aren’t limited to Republicans, as the situation in places such as New York shows.

Kelly, as governor, will get the chance to sign or veto any redistricting bill. She declined to answer specific questions about the redistricting process but has reiterated her support for a nonpartisan redistricting commission.

State Rep. Stephanie Clayton, an Overland Park Democrat who switched her party affiliation from Republican in 2018, says an independent commission does still have support among members of the Legislature. But there has not been the required two-thirds support needed to pose the question to voters – the same issue that Schmidt, who is running for the GOP gubernatorial nomination to oppose Kelly in 2022, ran into when he tried to establish a commission during his Senate days.

Clayton, who has served in the Legislature since 2013, didn’t mince words about why even the best-intentioned legislators shouldn’t pick their own constituencies.

“There’s a lot of moral ambiguity with redistricting when legislators do it, because I can try to be … as fair and honest (as I can) and follow the standards, but at the end of the day, of course I’m going to have a bias. Of course I know how I want those maps to look,” she says.

“Because of that implicit legislator bias, it’s morally gray,” she adds. “No, it should not be in the hands of the people who benefit from it. That’s pretty messed up.”

Republican leaders such as House Speaker Ron Ryckman of Olathe continue to stress that additional public input will be sought and will remain important to the process. But there’s a sense among other legislative leaders that it doesn’t really matter what Republicans do. 

“They’re (Democrats are) gonna sue no matter what the map comes out,” Senate President Ty Masterson told The Topeka Capital-Journal.

Furthermore, as Washburn University political scientist Bob Beatty has pointed out, regardless of how much opportunity the public is given to weigh in, that input isn’t binding. 

“Let’s keep in mind that in a partisan redistricting process, you can have all the input in the world, but at the end of the day, one party can simply do whatever they want,” Beatty told Topeka’s KSNT-TV.

There’s still a possibility that lawmakers might find some compromise that lets the GOP exercise its power over the process without leaving Democrats hamstrung and headed to court.

But the current trajectory doesn’t make it look very likely.

In a Statehouse environment where both political power and democratic fairness are on the line  with redistricting, it remains to be seen to what extent the two can ever be balanced, if at all.

“If we act like adults, and don’t act power hungry or weird and just get the work done – which is what the people want us to do – then yeah I think we  could avoid it,” Clayton says. “But you know, it all kind of depends. It’s the Kansas Legislature, and in the Kansas Legislature, there are no fair fights.”

But what would Democrats say if they had more power over the process? For people like Loevy, the Colorado redistricting commissioner, concerns  about gerrymandering are just as much about partisan gamesmanship as gerrymandering itself.

“In a redistricting struggle, both political parties continually argue they are being treated unfairly by the other side. It is a conscious and purposeful strategy,” he writes in his analysis. “Always contend your side is losing. Pretend your political party is losing badly, and maybe things will go better for your party in future negotiations or court cases.”

 

DISCUSSION GUIDE
  1. To what extent do you think redistricting is a trustworthy process in Kansas? What factors do you think build or reduce trust in the process?
  2. What do political parties risk when they give up control to a nonpartisan redistricting committee? How might interpretations of what’s being given up differ among various factions?
  3. In your view, what would “fair” redistricting look like?

 

Want to see how challenging reapportionment can be? Think you can do better than state lawmakers at redrawing the state’s political boundaries?

According to Stateline, a nonpartisan, nonprofit news service of the Pew Charitable Trusts, at least a dozen states are giving residents access to the software and web tolls necessary to map out how they’d like to be represented. Some states are even legally obligated to consider maps submitted by the public.

Kansas isn’t one of those states on either score. It’s one of 25 states where public input isn’t required during the redistricting process. (Lawmakers are still soliciting public input regardless.)

But there are several online tools out there that you could use to draw your own versions of what the congressional and state Legislature’s boundaries should look like after the 2020 Census. They include Dave’s Redistricting and DistrictR.org.

If you’re interested in the redistricting process, drawing a map might provide insights on the competing values lawmakers wrestle with as they go about their work. And there’s no reason you can’t share your work with state lawmakers.

But be forewarned. Drawing a map might be the easy part. It’s getting enough people to agree on the boundaries that makes redistricting a leadership challenge.

 

 

Cover of Journal about Father Kapaun

A version of this article appears in the Fall 2021 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. Order your copy of the magazine at the KLC Store or subscribe to the print edition.

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