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US high court redistricting case draws on Missouri’s example

Scott Lauck//March 18, 2019

US high court redistricting case draws on Missouri’s example

Scott Lauck//March 18, 2019

Missouri’s recent constitutional amendment on redistricting serves as an unusual example in a pending U.S. Supreme Court case on partisan gerrymandering.

The high court is set to hear two cases on March 26 that could determine how much partisan consideration is too much when legislative districts are drawn. Lamone v. Benisek involves a challenge to a Maryland congressional district that allegedly was drawn to disadvantage Republican voters. Rucho v. Common Cause involves North Carolina’s entire congressional map, which heavily favors Republicans.

Both cases involve claims that voters suffered a constitutionally justiciable injury because their votes were diluted by the way the districts were drawn — that by “packing” certain voters into a handful of districts and “cracking” pockets of other voters into multiple districts, those voters’ voices effectively became meaningless.

A statue sits in front of the Supreme Court building in Washington, D.C., U.S., on Monday, Nov. 7, 2011. U.S. Supreme Court justices questioned today whether police officers should have unbridled freedom to place GPS devices on cars to track criminal suspects. Photographer: Andrew Harrer/Bloomberg
A statue sits in front of the Supreme Court building in Washington, D.C., U.S., on Monday, Nov. 7, 2011. U.S. Supreme Court justices questioned today whether police officers should have unbridled freedom to place GPS devices on cars to track criminal suspects. Photographer: Andrew Harrer/Bloomberg

The arguments in the cases echo the logic behind a provision of the Clean Missouri amendment that Missouri voters approved in November. Among other things, the amendment requires Missouri’s state House and Senate districts to be drawn with “partisan fairness” as a paramount concern.

The two Supreme Court cases involve federal legislative seats being litigated under the U.S. Constitution, while Missouri’s new amendment is a direct change to the state’s law governing its own redistricting process. But they share a basic premise.

“What the Clean Missouri amendment is trying to do is put into law many of the same arguments that are being made at the Supreme Court against partisan gerrymandering,” said Chuck Hatfield, an attorney with Stinson Leonard Street who defended the amendment from an effort to keep it off the ballot. The amendment, which also reins in campaign contributions and limits lawmakers from becoming lobbyists, won 62 percent of the statewide vote in November.

That change to the law is exactly what a friend-of-the-court brief filed in the North Carolina case is urging the Supreme Court to worry about. Attorneys Edward Greim and Lucinda Luetkemeyer of Graves Garrett in Kansas City — the same firm that challenged the Clean Missouri ballot measure — wrote that Missouri’s new approach is “logically and legally at war with traditional community-based representation.” If the Supreme Court agree with challengers to the North Carolina map, that approach could be replicated nationwide.

“This court can now part ways with the Ghost of Redistricting Future, but for Missouri, this is reality,” they wrote in the brief on behalf of the National Republican Redistricting Trust.

It’s one of dozens of amicus briefs filed in the two cases, but the only one that extensively discusses Missouri’s recent amendment. In an interview, Greim said he believed the state’s situation was worth pointing out, as few may have realized what a big change Missouri has instituted.

Missouri’s amendment gives primary responsibility for state reapportionment to a nonpartisan demographer, who is instructed to draw House and Senate district lines with a series of criteria in mind. Previously, the constitution required districts to be contiguous and compact, but under Clean Missouri partisan fairness and competitiveness now are given priority.

The amendment seeks to minimize the number of districts in which candidates of a particular party tend to win by overwhelming majorities. To do so, the constitution requires the demographer to follow formulas that ensure that each party’s “wasted” votes — that is, the votes for a party’s candidate in excess of the 51 percent needed to win — are “as close to zero as practicable.”

Like Missouri’s amendment, the North Carolina hinges on the “efficiency gap” among voters and urges the high court to use such mathematical models as a standard.

Led by the organization Common Cause, the suit argue that the map violates the constitution by splitting the state into 10 majority-Republican districts and just three Democratic districts, despite a “near-equal split” in the partisan preferences of the state’s voters.

Greim’s brief argues that voters’ preferences aren’t immutable in the way that race or gender are. “Simply put, the votes of yesterday do not ensure the victories of tomorrow,” the brief says.

That brought pushback from another amicus brief filed by a nationwide group of political science professors. Citing the “suggestions to the contrary” in Greim’s brief, they argued that “the partisan identity of voters is highly stable and mapmakers can use data about partisan identity to predict voter behavior with a very high degree of confidence from election to election.”

David Kimball, a professor of political science at the University of Missouri-St. Louis, was among those who signed the amicus brief. In an interview, Kimball acknowledged that partisan preferences can shift during longer periods of time. Missouri, for instance, currently has Republican supermajorities in both the state House and Senate. Yet Democrats controlled both chambers for decades before losing the Senate in 2000 and the House in 2002.

Still, he said, those shifts are unlikely to make a difference during the one-decade timeframe of apportionment.

“If you draw a district today that’s a majority for one party, 10 years from now it’s very likely to still have a partisan majority for that party,” Kimball said.

Greim’s brief argues that by making a district’s partisan makeup more important than its compactness or even its contiguity, Missouri’s new method risks creating oddly shaped districts that have little relationship to existing political subdivisions — or possibly districts that aren’t connected at all.

“Voters living in the shadow of the St. Louis Arch may then constitutionally share a Missouri Senate district with Bootheel voters, unconnected by any contiguous territory,” he wrote.

Ironically, Greim said, the Supreme Court cases could result in a basis to challenge Clean Missouri in court. The plaintiffs have asserted their case as a violation of their individual right to have an undiluted vote.

Missouri’s constitutional amendment, however, is framed as a group right for political parties. If the plaintiffs win a Supreme Court victory, a future Missouri voter who objects to districts drawn under Clean Missouri might use that newly recognized individual right to sue under the U.S. Constitution.

Of course, how Missouri’s new provisions will play out won’t be known until after the 2020 census, when the state’s districts are next redrawn. (Missouri’s congressional districts will be redrawn at the same time, though that process isn’t effected by Clean Missouri and remains in the hands of the state legislature.)

Hatfield said he believes Greim’s fears are overblown and that the demographer will have plenty of data with which to both ensure partisan balance and draw sensible districts. If the Supreme Court rules against the plaintiffs in North Carolina and Maryland, Missouri’s experiment could be even more important.

“To continue the analogy, we’re going be dealing with this ghost either way,” he said. “If the Supreme Court says there is no constitutional prohibition on partisan gerrymandering, I think people are going to have to go out and change their own state constitutions to do exactly what we do with Clean.”

The cases are Rucho v. Common Cause, 18-422, and Lamone v. Benisek, 18-726.

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