Gov. Mike Parson signed legislation creating a new congressional map for Missouri’s eight districts on Wednesday, ending a months-long stalemate that divided the state’s Republicans.
But the signing of the map, which goes into effect right away, may not be the last roadblock to the districts. That’s because the map could face a lawsuit over whether it adheres to a constitutional requirement to be as “compact as may be.”
Parson said he was fairly confident that the map, which likely keeps the existing 6-2 Republican majority, would survive a compactness lawsuit.
“I think the map’s constitutional,” Parson said. “I don’t think the courts are going to be too anxious to get involved either because it only happens once a decade.”
But even critics acknowledge that a 2012 case upholding the old map may sink any court challenge.
Still, veterans of Missouri redistricting litigation say it’s pretty low risk for someone to initiate a lawsuit.
“I don’t see much downside in a lawsuit,” said Gerry Greiman, an attorney who represented the plaintiffs in the case trying to throw out the map in 2011. “If it loses, it loses. You’re no further behind than you were. The only downside is whatever resources it takes to fund it.”
‘A legislative shenanigan’
Ray Price once called shenanigan on the Missouri legislature. That’s not a misprint. When he was a judge on the Missouri Supreme Court in 2012, Price wrote a dissenting opinion on a landmark case upholding a congressional map where he accused his colleagues of upholding an “obvious legislative shenanigan.”
In his view, the Missouri Constitution clearly requires districts to be compact and Price said there was no way that the map passed in 2011 reached that standard.
“Compact and contiguous means the lines ought to be sensible, not squiggly,” said Price during a 2019 appearance on Politically Speaking.
The issue of compactness is likely to be the central focus of litigation if someone sues over the map Parson just signed. After plenty of starts and stops, the Senate approved a map last Thursday Among other things, Republicans in the Senate quarreled over how GOP-leaning to make the map.
"It's unfortunate it took as long as it did," Parson said. "I do think that probably caused some of the other major priorities we had to not make it across the finish line. But needless, it was a good day to get done. It's important for our local county clerks to have as much time as possible to make sure we get this right — especially with nine counties that have been split."
One of the reasons that Democrats may sue over the map is that it transforms the 2nd District from swing territory to solidly GOP turf by adding parts of Warren County and all of Franklin County. Failing to challenge that district may keep it in GOP hands for the near future.
Critics point out at least three major parts of the map that could run afoul of the constitution, including:
- The 3rd District, represented by Blaine Luetkemeyer, R-St. Elizabeth, stretches from St. Charles and Jefferson counties to Cooper County. House Minority Leader Crystal Quade said Friday that the district looked like “it was eating” the 1st and 2nd districts.
- The 5th District, represented by Emanuel Cleaver, D-Kansas City, includes a small rectangular area that moves into Clay County. Greiman said that makes the district look like a smokestack.
- Others have pointed to how the 1st and 2nd Districts were drawn as possibly running afoul of compactness requirements. The 1st District juts out into Webster Groves, while the 2nd District rolls around that land mass into Richmond Heights and Maplewood.
Greiman, who said he hasn’t been asked to take part in any redistricting lawsuit over the map, contends the 2022 plan is worse in terms of compactness than the one legislators approved in 2011.
“Nobody paid the slightest attention to the constitutional requirements of compactness,” he said. “Everybody’s trying to jockey for political gain.”
A tough road?
But both Greiman and fellow attorney Jim Layton agree that the decision by the Supreme Court to uphold the 2011 map greatly weakened the Missouri Constitution’s compactness requirement.
Layton was solicitor general for the Missouri attorney general’s office in 2012, which defended the map that lawmakers approved in 2011. Because the constitution states that districts have to be as compact “as may be,” Layton said lawmakers could get away with making individual parts of the plan uncompact without getting the map thrown out. Missouri’s constitution also doesn’t specifically define what constitutes compactness.
Still, Layton said there are some key differences that could change the trajectory of a lawsuit filed over this year’s map. For one thing, the composition of the court is different and two judges that recused themselves in 2011, Mary Russell and George Draper, may participate.
He also said the fact that there were other maps besides the one that Parson signed that passed either the House or the Senate could provide some pause to judges who consider the case.
“You have a legislative history that shows a lot of alternative maps,” Layton said. “Some or many or all of those are more compact than what they ultimately enacted. And so, there’s more ammunition than there was 10 years ago.”
Layton also said technology has advanced in a decade to analyze maps for compactness.
“Ten years ago, if you were going to run these numbers that measured compactness for the map as a whole, you had to hire some expert,” Layton said. “Part of the challenge was that all of the experts that I knew of at least were either Republican Party experts or Democratic Party experts. And that’s not true anymore, because the tools that are available to people other than the two major parties to measure compactness and look at these districts are much better than they were 10 years ago.”
What’s the remedy?
And even if a lawsuit was successful, it’s not a sure thing that the end result would be districts that are more competitive right away or at all.
Greiman and Layton both said it wouldn’t be out of the question that judges would hold off on making any decision about the validity of the map until after the 2022 election cycle. And it’s unclear if the legislature or the court would redraw the map.
Senate Majority Leader Caleb Rowden, R-Columbia, said it’s difficult to speculate what the court would do, but added, “We’ll cross that bridge when we get there.”
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