Kansas Attorney General Opinion 2024-001

January 11, 2024
ATTORNEY GENERAL OPINION NO. 2024-1
The Honorable Ken Corbet
State Representative, 54th District
State Capitol, Room 179-N
Topeka, Kansas 66612
Re: 	Cities and Municipalities—Planning and Zoning—Planning, Zoning
and Subdivision Regulations in Cities and Counties—Same;
Subdivision Regulations; Adoption and Amendment
Synopsis: 	Although the Kansas Legislature may legally permit a city to impose
its land subdivision requirements on county residents within three
miles of city limits, it should be cautious when granting cities
extraterritorial authority. Cited herein: K.S.A. 12-749.
* 	* 	*
As the Representative of the 54th District, you inquire about the constitutionality of
K.S.A. 12-749, which generally authorizes a city planning commission to enforce
land subdivision regulations against properties within three miles of city limits. You
question whether a city may lawfully impose these regulations on individuals who
cannot elect the city’s leaders.
The legality of a similar law was tested in Holt Civic Club v. City of Tuscaloosa,1
where residents of an unincorporated community challenged a city’s authority to
enforce their police and sanitary regulations on those situated within three miles of
city limits.2 The United States Supreme Court rejected the residents’ claim that the
law violated the “one person, one vote” mandate of the Equal Protection Clause by
1 439 U.S. 60 (1978).
2 Id. at 61-62.

Hon. Ken Corbet
Page 2
distinguishing the case before it from its prior voting limitation cases.3 Applying
rational basis review, the Court held that in light of the “extraordinarily wide
latitude that States have in creating various types of political subdivisions and
conferring authority upon them,” the law was reasonably related to legitimate
governmental interests.4
Your objection appears to be grounded in the Guarantee Clause found in Article IV,
Section 4 of the United States Constitution. It provides in part that “[t]he United
States shall guarantee to every State in this Union a Republican Form of
Government[.]”5 Although courts typically refuse to entertain challenges based on
this provision due to its political character, 6 we, like you, are concerned by K.S.A.
12-749’s ability to subject county residents to laws passed by governmental officials
whom the residents cannot elect. Indeed, the Supreme Court acknowledged in Holt
Civic Club that “[g]iven this country’s tradition of popular sovereignty, appellants’
claimed right to vote in Tuscaloosa elections is not without some logical appeal.”7
The appeal of such an argument is inherent in our republican form of government.
As James Madison put it, “[i]t is essential to [a republican form of] government that
it be derived from the great body of the society, not from an inconsiderable
proportion or a favored class of it.”8 And without the Guarantee Clause, Alexander
Hamilton said, “[u]surpation may rear its crest in each State and trample upon the
liberties of the people, while the national government could legally do nothing more
than behold its encroachments with indignation and regret.”9
Nevertheless, the Supreme Court has held that the political branches of
government—not the courts—must enforce the Guarantee Clause. As such, it is
incumbent upon the Kansas Legislature (and/or Congress)10 to preserve the
representative nature of our state government. Before granting municipalities
extraterritorial authority, the legislature should carefully consider the effects such
laws have on county residents who cannot elect city leaders. And the most
expedient way to address the potential unconstitutionality of K.S.A. 12-749 would
be for the Kansas Legislature to amend it accordingly.
3 Id. at 66-70.
4 Id. at 70-75. The Court also rejected a cursory due process claim. Id. at 75.
5 U.S. Const. art. IV, § 4.
6 E.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2506 (2019). The longstanding justification for this
position is that the Constitution leaves enforcement of the Guarantee Clause to Congress, meaning if
citizens object to their state’s form of government, they must appeal to their federal representatives.
See Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849).
7 Holt Civic Club, 439 U.S. at 70.
8 The Federalist No. 39, at 237 (James Madison) (Clinton Rossiter ed., 1961).
9 The Federalist No. 21, at 135 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
10 See The Federalist No. 43, at 271 (James Madison) (Clinton Rossiter ed., 1961) (explaining that a
federalist government “founded on republican principles, and composed of republican members, the
superintending government ought clearly to possess authority to defend the system against
aristocratic or monarchical innovations”).

Hon. Ken Corbet
Page 3
Sincerely,
/s/ Kris W. Kobach
Kris W. Kobach
Kansas Attorney General
/s/ Kurtis K. Wiard
Kurtis K. Wiard
Assistant Solicitor General