– Federal judges deciding the fate of Kansas’ legislative districts sent strong signals Wednesday that they might jettison plans that didn’t make it through the Legislature and draw their own district maps.
On the second day of hearings in the Kansas City courthouse, the three-judge panel spent significant time pressing Corey Carnahan – the Legislature’s go-to guy on maps – for details of how redistricting is done and how they could take advantage of his services.
The hearings had begun Tuesday with Carnahan, an analyst in the Department of Legislative Services, giving the court a primer on the use of mapping software to develop legislative districts.
Wednesday, the judges put him back in the witness box for a more lengthy and detailed tutorial on producing redistricting maps.
“Could you tell us how we could do that?” asked John Lungstrom, senior judge in the Kansas City federal District Court. “How would we as the court do that?”
As to helping the judges draw maps, Carnahan said, “That would be a request we could accommodate.”
State Sen. Tim Owens, R-Overland Park, told the judges they’d reached the point he was at when he embarked in map-making as chairman of the Senate Reapportionment Committee, the panel with primary responsibility for the Senate’s redistricting effort.
“I think the questions of the court just a few minutes ago are where I was at the start of the process,” Owens said. He said he had gone to Carnahan and asked him to draw up a fairly generic set of maps to get discussion started in the Legislature.
The Legislature is required once every 10 years to redraw congressional and state House, Senate and Board of Education district lines to account for population changes in the Census and ensure more-or-less equal representation across the state.
But the process broke down this year as warring conservative and moderate Republican factions pressed for maps favoring their candidates for election.
The conservatives, who already hold the House and the Governor’s Office, have targeted at least eight senators with primary challenges in an effort to take over the somewhat less conservative Senate.
A map called “For the People 13b,” that passed the House but was rejected in the Senate, heavily favors the conservative challengers.
Moderates pinned their hopes on a map called “Buffalo 30 Revised,” which cuts several potential challengers out of districts where they want to run. The Senate passed that map, but it didn’t make it through the House.
Lawyers and witnesses for both the conservative and moderate factions repeatedly accused each other of “gerrymandering,” a political term for drawing oddly shaped districts to help their political chances and/or damage opponents’ chances.
The judges appeared to be running short of patience after about 12 hours Wednesday and Tuesday listening to more than two dozen lawyers and politicians arguing that their map was the fairest in the land.
The judges limited closing statements to five minutes and post-hearing briefs to 10 pages – down from the usual 30.
They also asked the attorneys to focus their arguments on the constitutionality of competing maps rather than issues such as which politicians might be favored or disfavored or which cities were mistreated by a particular plan.
Lungstrom suggested the judges could ask Carnahan for maps based on the premise that “we really don’t care about the internal politics of legislators who have not passed maps.”
He also said he didn’t think the judges needed to give any legal deference to district maps that didn’t make it all the way through the process of passage in both legislative chambers and approval by the governor.
The judges did acknowledge that case law holds them to higher standards than are expected in the political tussle of drawing maps in the Legislature.
On congressional maps, lawmakers are required to minimize the population deviations between districts as much as possible.
But on state districts, legislators can generally get to a “safe harbor” constitutionally as long as their maps are within plus or minus 5 percent of the optimum number of residents.
However, case law indicates that courts that make their own redistricting maps need to get closer to even population across districts, the judges said.
There’s no exact percentage they have to reach, but Secretary of State Kris Kobach, the defendant on behalf of the state, told the judges that they’d clearly be constitutional if they keep population deviation to less than 1 percent.
Of all the maps considered in the Legislature and the court case, only one, called “Essex A,” meets that standard.
The map is named for Robyn Renee Essex, a Johnson County Republican precinct committeewoman and the named plaintiff in the lawsuit that put redistricting in the hands of the court.
The “Essex A” map is a hastily produced variant on the conservatives’ “For the People” maps. It was introduced into court on Tuesday.
The actual origin of the map remains unclear, but Sen. Jeff King, R-Independence, testified Tuesday that he got it from an aide to Gov. Sam Brownback.
King also testified that he had gotten the map analyzed by Legislative Research and rushed onto a state website so it could be introduced at the trial.
Kevin Fowler, a lawyer representing Owens at the trial, called it “unsavory gamesmanship of the worst kind.”
A version was contained in the original court complaint, but in a pretrial conference, Essex’s lawyers had said they were abandoning the map, Fowler said.
Although it’s close to what they advocated in the “For the People” family of maps, the conservative advocates largely backed away from “Essex A” because of the questions over its origin and the fact that it had never been considered in the legislative process.