A federal judge is blocking Democratic lawmakers from intervening in a lawsuit filed by Republican lawmakers against the GOP legislative leadership over a failed attempt to convene a convention of states to amend the U.S. Constitution.
Senator Mike Thompson (R-Shawnee) and Representative Michael Murphy (R-Sylvia) filed the lawsuit in December in U.S. District Court in Topeka against Senate President Ty Masterson (R-Andover) and Speaker of the House Dan Hawkins (R-Wichita). The House leadership is represented by Attorney General Kris Kobach, a Republican.
A group of Democratic senators and representatives intervened on the grounds that the Republicans involved were “not adequately representing the interests” of the Democrats.
U.S. Judge Gwynne Birzer ruled on Friday after a hearing in Wichita in July that the proposed interveners “have not demonstrated at this stage of the litigation that the defendants will inadequately protect their interests in these proceedings.” Democrats could renew their motion “if, however, future developments undermine the presumption of adequate representation.”
The Republicans pushed for a convention of states
At issue is a long-running effort by conservative Republicans to add Kansas to the ranks of supporters of a convention of states to amend the U.S. Constitution. Previous attempts have succeeded by achieving simple majorities of legislators, but the Kansas Constitution requires qualified majorities.
“This two-thirds majority requirement violates the federal Constitution,” Thompson and Murphy claim in their lawsuit, asking a federal judge to declare the relevant section of the Kansas Constitution unconstitutional.
In 2023, lawmakers passed two resolutions calling for an amendment to the U.S. Constitution to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office of federal government officials and members of Congress.”
Some Conservatives opposed such efforts, fearing that it could backfire politically if the Liberals introduced their own preferred amendments.
More: Two conservative representatives from Kansas are suing the Republican leadership over the state convention
Democrats questioned “strength” of Republican defense
Masterson and Hawkins voted for the resolutions in their respective chambers.
The Democrats who have filed a motion to intervene are Senators Ethan Corson (D-Fairway), Dinah Sykes (D-Lenexa), Marci Francisco (D-Lawrence), Tom Holland (D-Baldwin City), Pat Pettey (D-Kansas City), Cindy Holscher (D-Overland Park) and Mary Ware (D-Wichita), and Representatives Jerry Stogsdill (D-Prairie Village), John Carmichael (D-Wichita) and Dan Osman (D-Overland Park).
Democrats questioned “the vigor” of the Republican leadership’s defense in supporting the resolutions. They also claimed that Thompson and Murphy “coordinated” with Masterson and Hawkins “to achieve a lightning-quick resolution of this case in which plaintiffs seek preemption of the Kansas Constitution.”
The Attorney General’s office responded that Kobach and his staff “have a duty to vigorously defend the state Constitution to the best of their ability.” They also claimed that the Democrats’ planned intervention “appears to be an attempt to use the court to wage a political, rather than a legal, battle.”
Meanwhile, Thompson and Murphy’s lawyers claimed Democrats wanted to intervene to force disclosure, saying “disclosure would violate the legislative privilege” of Republicans, who would question Democrats “about their political leanings, thought processes and communications.”
What happens next?
Birzer set filing deadlines in October and November for motions, answers and responses concerning the constitutionality of the Kansas Constitutional provision.
The judge reminded Democrats that they could file an amicus curiae brief if their arguments disagreed with those of the attorney general.
If the ruling is ultimately found to be unconstitutional, the court will determine the effects of this finding in a second phase of the proceedings. The debate will then be whether the two 2023 resolutions will be declared adopted retroactively.
Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at [email protected]. Follow him on X @Jason_Alatidd.
