WASHINGTON, D.C. — On Monday, March 27, the U.S. Supreme Court declined to review a petition filed by Kansas Voters and Loud Light Kansas seeking review of Kansas’ congressional map drawn with 2020 census data. This appeal to the nation’s highest court stems from a consolidated lawsuit against Kansas Secretary of State Scott Schwab (R) and other Kansas officials challenging the state’s congressional map for being a partisan gerrymander that favors Republicans and for diluting the voting power of minority Kansans in violation of the Kansas Constitution. Back in April 2022, a trial court agreed with the plaintiffs and struck down the challenged congressional map for violating the Kansas Constitution. Subsequently, the Kansas Supreme Court reversed the trial court’s decision and reinstated the Republican-drawn map. In its opinion reversing the trial court’s decision, the majority rejected the plaintiffs’ partisan gerrymandering claim and found that the plaintiffs’ intentional racial discrimination claims, which asserted that the challenged map intentionally dilutes minority voting power, did not have any solid footing because the plaintiffs failed to prove that the “minority group is sufficiently large and geographically compact to constitute a majority in a single member district.”
In response to the court’s holding on the intentional racial discrimination claims, the plaintiffs asked the Kansas Supreme Court to rehear this part of its decision. In their request for rehearing, the plaintiffs raised the fact that the court’s majority conflated the legal standards used for assessing intentional discrimination claims under the Kansas Constitution’s Equal Protection Clause (which, according to the Kansas Supreme Court’s opinion, is “coextensive” with the U.S. Constitution’s Equal Protection Clause) and racial vote dilution claims under Section 2 of the Voting Rights Act of 1965. In August 2022, the Kansas Supreme Court rejected the plaintiffs’ motion for rehearing, after which two sets of parties appealed to the U.S. Supreme Court.
In their petition for a writ of certiorari to the U.S. Supreme Court, the petitioners argued that the Kansas Supreme Court reached an “erroneous result” in ruling that “intentional racial discrimination in redistricting is unconstitutional only if it prevents the formation of a majority-minority district.” The petitioners noted that “the court below conflated the statutory requirements a plaintiff must satisfy to advance a statutory discriminatory results claim under Section 2 of the Voting Rights Act…with the equal protection principles that apply to constitutional intentional vote dilution claims under the Fourteenth Amendment.” In other words, the petitioners asserted that the Kansas Supreme Court erred when it wrongly applied a hallmark, three-part legal test (known as the Gingles test) used to assess Section 2 racial vote dilution claims to the plaintiffs’ intentional racial discrimination claims.
Specifically, the petitioners maintained that the court misapplied the first Gingles factor, which involves assessing whether the minority group in question is “sufficiently large and geographically compact” to elect a candidate of its choice. In contrast to proving racial vote dilution under Section 2, proving intentional discrimination in redistricting does not require the minority voters who are discriminated against to be sufficiently numerous to form a majority of eligible voters in a single-member district, the petitioners argued. The petitioners also pointed out that many “courts have held that intentional racial discrimination in redistricting violates the Fourteenth Amendment regardless of whether the victims are sufficiently numerous and compact to constitute a majority-minority district.” The petitioners concluded that the Kansas Supreme Court’s decision effectively “greenlights intentional race discrimination in redistricting whenever the victims of the discrimination are not sufficiently numerous and compact to constitute a majority-minority district” and therefore warrants review and reversal by the U.S. Supreme Court.
Today’s order rejecting the petition means that the Kansas Supreme Court’s ruling will remain in place. In doing so, the U.S. Supreme Court declined to review the Kansas Supreme Court’s decision, which, as the petitioners pointed out, “would make intentional racial discrimination constitutional in the vast majority of redistricting settings” especially given that “[t]here are relatively few places where there are enough geographically concentrated minority voters to form a majority of an electoral district.” This also means that Kansas’ congressional map drawn with 2020 census data remains in place.