There is one sure thing about drawing House and Senate districts in Missouri: Someone who is unhappy with the final product will file a lawsuit, and courts will have to sort out whether complex rules were violated in the process.
So it’s not surprising that who can challenge a state legislative map, and which judges will hear the case, is a source of contention around Amendment 3. That’s the November ballot item that would make big changes to a voter-approved state legislative redistricting system, known as Clean Missouri, which became part of Missouri’s Constitution in late 2018.
Under Amendment 3, a redistricting-related lawsuit would have to be filed in Cole County court only by “an eligible Missouri voter who sustains an individual injury by virtue of residing in a district that exhibits [an] alleged violation, and whose injury is remedied by a differently drawn district.”
If a lawsuit is unsuccessful, a person challenging a House or Senate district can appeal to the Missouri Supreme Court — which can adjust “only those districts, and only those parts of district boundaries, necessary to bring the map into compliance.”
‘This is for the Supreme Court’
Eddie Greim is a Kansas City attorney who answered questions from lawmakers as they tried to put Amendment 3 on the ballot. He said the legal guidelines in the amendment provide certainty and predictability for people who want to sue over a map.
“And we know that the Cole County Bar and the Cole County bench has experience with constitutional and political litigation,” Greim said. “And then we're not going to mess around about whether the Missouri Supreme Court has appellate jurisdiction.”
Greim also said requiring someone to show that they’ve been personally affected by a redistricting decision is in line with the U.S. Supreme Court case Gill v. Whitford, in which Democrats sought to overturn a state legislative map they contended was slanted toward Republicans. The court ruled in 2018 that plaintiffs “alleged they had such a personal stake in this case, but never followed up with the requisite proof.”
Greim said some people don’t like specific rules requiring someone to show that they’re directly affected by a redistricting decision, because “they want courts to make policy, and a lot of legal theories fall apart once you have to allege individual injury in a way that's measurable.”
“You can't just be a stand-in for someone who doesn’t like the map in general, because they don’t like the number of seats their political party got,” Greim said.
Sean Soendker Nicholson is leading the campaign to defeat Amendment 3 and was the campaign manager of the bid to enact Clean Missouri in 2018.
Nicholson said the restrictions on who can hear a state redistricting case, and who can bring suit, are aimed at making it harder to overturn unfair maps.
“The folks behind Amendment 3 are trying to blaze new trails of bad,” he said.
Nicholson said Amendment 3 would prevent a Democratic or Republican voter from suing if they feel they live in a district that is overfilled with Democratic or Republican voters as a way to make surrounding districts less favorable to their political party. This is known as packing.
“If your person wins like by an unnatural amount, they want to make it so you can't be a part of saying, ‘the outcome here is unfair,’” Nicholson said.
Nicholson also said that Amendment 3’s language about only adjusting districts that need to be brought into compliance would be difficult to achieve, since changing one part of a map could affect the rest of it.
And Nicholson added that under the Clean Missouri system, a case would go from the trial court to the appellate court to the Supreme Court — and that judges would have latitude about how to act if, for instance, they wanted to have the demographer and commissions empowered under the Clean Missouri system redraw the maps.
“Some of these judges are being asked to do things in which they have no expertise,” Nicholson said. “The judge or a judicial panel might say ‘this clearly violates the law.’ The best outcome is for the demographer and the commissions who have expertise in this to go fix it. And that should be an option, and that’s one of the things Amendment 3 is trying to take away.”
There were two lawsuits after appellate judges created House and Senate maps in 2011. The one against the House districts was unsuccessful. But litigation against the judges’ Senate map resulted in the plan being thrown out, primarily because the proposal improperly divided counties.
David Brown is a Columbia-based lawyer who represented Molly Teichman, the plaintiff in the case that got the initial Senate map thrown out. After reviewing the language of Amendment 3, Brown cast doubt on whether the language would really restrict someone from filing a lawsuit if they made a claim that the maps violate the U.S. Constitution.
“Any good lawyer challenging a future map will allege that the map violates the Fourteenth Amendment to the U.S. Constitution, which will provide standing for any plaintiff to challenge the map so long as the plaintiff is a Missouri voter, even if the proposed legislation is adopted and the plaintiff lives in a ‘correctly drawn’ district,” Brown said.
Nicholson said the U.S. Supreme Court decided last year that it’s essentially up to states to “put up guardrails for the process so that the rules are fair and everybody has their chance.” He was referring to a case in which the high court ruled that partisan gerrymandering cases were beyond the scope of the federal courts.
Brown also questioned the language about adjusting “districts, and only those parts of district boundaries, necessary to bring the map into compliance.”
He said only changing one or two districts that are in violation of Amendment 3’s guidelines “is likely to have a cascading and catastrophic effect on a map.”
In the Teichman case, Brown noted the Supreme Court effectively restarted the commission process and “kept the courts clear of the inherently political process of redrawing districts.” He also pointed out that Amendment 3’s decision to give appellate jurisdiction to the Supreme Court is notable, since that was not specifically spelled out before Clean Missouri was adopted.
Responding to Brown’s observations, Greim said, “It could be the case that you have to redo the whole map, but it is often not the case.”
Follow Jason Rosenbaum on Twitter: @jrosenbaum