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New redistricting scheme costs judges an unwelcome job

A newly approved amendment to the Missouri Constitution will strip the state’s appeals judges of one of their most unusual roles.

With 62 percent of the statewide vote, Missouri voters on Nov. 6 approved Constitutional Amendment 1, a wide-ranging measure to rein in campaign contributions and limit lawmakers from becoming lobbyists. The measure also overhauled the existing system for crafting the state’s legislative districts every 10 years.

Under Missouri’s current constitution, state House and Senate districts are supposed to be drawn by two bipartisan commissions whose members are appointed by the governor with input from the state’s political parties. But if those commissions reach an impasse, the power to redistrict the state falls to a group of six appellate judges appointed by the Missouri Supreme Court.

Drawing legislative districts is an unusually political job for a court-appointed body to have. Effectively, the Appellate Apportionment Commission operates as a legislative body, not a judicial one, and its decisions affect the political fates of lawmakers from both parties.

But with the passage of the so-called “Clean Missouri” amendment, the Appellate Apportionment Commission is no more. Instead, primary responsibility for drawing state House and Senate lines will fall to a nonpartisan demographer. The two bipartisan commissions will remain, but their function is now to review the demographer’s proposals. Unless seven out of 10 members of bipartisan commissioners can agree on changes, the demographer’s maps will stand as written.

In essence, the new amendment shifts the ostensibly nonpartisan aspect of redistricting to the beginning of the process. It also saves the judges from taking part in an exercise that frequently has drawn the ire of lawmakers while also facing challenges in court.

Michael Wolff, a former Missouri Supreme Court judge and retired dean of Saint Louis University School of Law, defended the appellate judges’ efforts to be as fair as possible. But he wasn’t sad to see their role in redistricting removed.

“No matter how you dress it up by having judges do it, it is ultimately a series of political decisions,” Wolff said. “I think it’s much better for the judiciary not to be involved in it.”

Benjamin Singer, communications director for Clean Missouri, the group that proposed Amendment 1, said the Appellate Apportionment Commission’s role in the process didn’t make much sense. Even if its approach was nonpartisan, its members started off with existing maps and data provided by politicians.

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“A big part of the challenge in the past is that the judges are not expert demographers,” Singer said.

But Eddie Greim of Graves Garrett in Kansas City, who led a pre-election legal challenge to the amendment, said he doubts that assigning the task to a demographer would prevent partisan interests from creeping in.

“Every time there’s something that’s supposed to be nonpartisan or bipartisan, both parties work as hard as they can to try to capture that entity, and frequently they’re successful,” he said.

Under the current system, the bipartisan commissions have deadlocked on maps for either the House or the Senate or both in every decade since the 1970 census, leaving the job to the panel of judges. In Missouri’s most recent round of redistricting, the Appellate Apportionment Commission drew the map that currently is in use for the 163-member House.

The judges also drew a map for the 34-member Senate but then revised it because it appeared to violate a state constitutional provision that says counties cannot be split up unless necessary. The Supreme Court ruled that the commission had no authority to withdraw a map once it had been submitted, so the task went to a new bipartisan commission, which successfully finished the Senate map in use today.

The judges’ maps infuriated sitting members of the legislature, who complained that they were drawn in closed-door meetings and that the resulting districts were unwieldy. Some district lines ignore natural features such as rivers, making it impossible for a lawmaker to drive from one end to the other without leaving the district.

In a letter in 2011, then-House Majority Leader Tim Jones and then-Minority Leader Mike Talboy said the appellate judges’ maps “have done substantial damage to Missouri’s representative system of government” and “generally throw the legislative landscape into chaos for no readily apparent reason.” But despite a court challenge that raised those issues, the Supreme Court upheld the map in 2012.

Nonetheless, lawmakers remained peeved at the judiciary as a whole. In 2014, the House drafted appropriations bills that left out a set of constitutionally mandated pay increases for judges, in apparent retaliation for the redistricting fight. The raises ultimately were restored in the final budget.

It remains to be seen how the new redistricting process will work after the 2020 census. Missouri’s current constitution requires districts to be roughly equal in population, contiguous and as compact “as may be.” Those criteria remain in effect for Missouri’s congressional districts, which still will be drawn by the state legislature.

The new amendment adds detailed criteria for state-level districts. In particular, it prioritizes “partisan fairness” and competitiveness by requiring the demographer to reduce the number of districts in which candidates of a particular party tend to win by overwhelming majorities.

Singer said he believes the new parameters will encourage districts that, wherever possible, are drawn to be as competitive as possible.

“You’re still going to have districts in Kansas City and St. Louis that are going to be safe Democrat, if that’s what the people want, and districts in south-central Missouri that are safe Republican, if that’s how voters there are voting,” he said. “Not every district has to be competitive. We just to have enough competitiveness that the overall map is competitive.”

Greim was skeptical and said attempting to achieve partisan fairness could result in oddly shaped districts.

“If you just look at where people live, if you want to come out at a certain number of districts for Republicans and Democrats, you can’t draw normal-looking districts,” he said. “You have to start inside of a city and then draw out.”

Greim added that more litigation against provisions of the amendment is being considered. It also is likely that the next round of maps, whether drawn by a demographer or by the bipartisan commissions, will face a legal challenge in which the new constitutional requirements will be put to the test. In other words, the courts will still have a role in redistricting. Just not on the front end.