U.S. Supreme Court could entrench power of Kansas, Missouri lawmakers to gerrymander

The U.S. Supreme Court may entrench the power of Kansas’ and Missouri’s Republican-controlled legislatures to gerrymander congressional districts for partisan gain by blocking state courts from intervening.

The nation’s high court heard oral arguments Wednesday in a case that would hand state legislatures sweeping authority over elections for Congress and the presidency. The justices will decide whether language in the U.S. Constitution’s elections clause that gives state legislatures the ability to set the “times, places and manner” of federal elections also cuts out state courts.

The case, arising out of a challenge to North Carolina’s congressional map, is centered on the independent legislature theory — an idea that’s attracted growing attention from conservatives. The justices appeared skeptical of a broad decision, but arguments aren’t always indicative of how they’ll eventually rule.

Kansas and Missouri legislatures finished a once-a-decade redistricting process this spring that imposed new congressional district boundary lines based on updated Census population data. Missouri lawmakers ultimately drew a map that preserved the balance of six Republican U.S. representatives and two Democrats.

However, Kansas lawmakers approved a map that unsuccessfully tried to weaken Democratic U.S. Rep. Sharice Davids’ hold over her suburban Kansas City district. The map was challenged in state court, with Democrats and others arguing it was an unconstitutional gerrymander. While the Kansas Supreme Court ultimately upheld it, the independent state legislature theory could prevent lawsuits against future maps in state court.

Depending on how the court rules, the theory could allow state legislatures to ignore state constitutional requirements when it comes to federal elections. That would undercut any future amendments to the Kansas or Missouri constitutions to limit gerrymandering.

“It’s a horrifying theory,” said Missouri state Rep. Peter Merideth, a St. Louis Democrat.

But Missouri state Rep. Doug Richey, an Excelsior Springs Republican, said lawmakers are accountable to the people in a way courts aren’t.

“The constitution clearly states that state legislatures are directly responsible and have the authority identified in the constitution to set election laws,” Richey said.

Missouri voters have weighed in on how the state conducts redistricting multiple times in recent years. It’s possible another statewide vote could one day implement an independent commission to redraw congressional districts, which are already used to redraw state House and Senate districts. The independent state legislature theory would possibly clear the way for the General Assembly to ignore such a commission.

The most aggressive forms of the theory, if adopted, might also allow legislatures to approve congressional maps without governors having the ability to approve or veto them.

Kansas Democratic Gov. Laura Kelly, who won reelection in November, won’t be in office during the next redistricting cycle, which will begin after the 2030 Census. She has previously called for Kansas to use a non-partisan commission.

Still, the governor offered a muted answer when asked about the U.S. Supreme Court case on Wednesday.

“I’m just going to wait till the court does rule and then, if necessary, we will explore those implications and try to deal with them,” Kelly told reporters.

Mark Johnson, a Kansas City-based attorney who has worked on election law matters, said the theory would give state legislatures wide power to run elections. State lawmakers would decide things like the location of polling places, the hours polls are open, how polling places are staffed and other operational matters that are often made by local election officials.

“It would be incredibly complicated and turn the voting process into something that’s completely controlled by the politicians,” Johnson said.

Kansas Attorney General Derek Schmidt, a Republican, has signed on to an amicus brief urging the U.S. Supreme Court to adopt the theory. A spokesman for Missouri Attorney General Eric Schmitt, a Republican who will leave his position to join the U.S. Senate in January, didn’t answer questions about Schmitt’s position.

Missouri Secretary of State Jay Ashcroft, a likely Republican candidate for governor in 2024, filed his own amicus brief arguing that while states have authority over congressional redistricting, the U.S. Constitution’s elections clause isn’t the source of that power. Ashcroft suggested that relying on the elections clause would open the door to Congress overseeing the redistricting process.

“In Missouri, the state constitution states that congressional district lines are to be drawn by the state legislature; therefore, we need to keep the federal government out of Missouri elections,” Ashcroft said in a statement.

At the U.S. Supreme Court on Wednesday, both liberal and conservative members of the high court appeared to take issue with the main thrust of a challenge asking them to essentially eliminate the power of state courts to strike down legislature-drawn, gerrymandered congressional districts on grounds that they violate state constitutions.

“This is a theory with big consequences,” Justice Elena Kagan said, allowing for the “most extreme forms of gerrymandering from legislatures.”

In North Carolina, the state Supreme Court struck down districts drawn by Republicans who control the legislature because they heavily favored Republicans in the highly competitive state. The court-drawn map used in last month’s elections for Congress produced a 7-7 split between Democrats and Republicans.

North Carolina is among six states in recent years in which state courts have ruled that overly partisan redistricting for Congress violated their state constitutions. The others are Florida, Maryland, New York, Ohio and Pennsylvania.

The decision in the case is unlikely until late spring.

The Star’s Daniel Desrochers and the Associated Press contributed reporting.