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Judges wade into unprecedented redistricting thickets

By Scott Lauck

The Missouri Supreme Court has struggled for 100 years to figure out exactly how to deal with the politically fraught and inherently messy yet constitutionally sensitive task that is redistricting. Time hasn’t made those issues any easier.

On Thursday, the Supreme Court heard separate constitutional challenges to Missouri’s new congressional districts and to its state Senate map.

Last year, Missouri lawmakers redrew the boundaries of the congressional districts to conform to the results of the 2010 census, which shrank Missouri’s representation from nine seats to eight. Similarly, a panel of six appellate judges drew new districts for the state House and Senate, after two politically appointed bipartisan commissions failed to do so.

Although they are separate lawsuits and present different legal issues, all of Thursday’s arguments left the court to ponder its proper role. In each case, the judges face a paucity of caselaw and several potentially conflicting standards of what they should do, with a series of bad-to-worse options that all seem to run headlong into constitutional problems.

“You’re walking us into uncharted territory,” Judge William Ray Price Jr. said to David G. Brown, an attorney challenging the state Senate districts. “But we need a map to get back home.”

The state Senate challenge stems from the work of the Appellate Apportionment Commission, which submitted its Senate map in November — then submitted a revised map in December. In a press release, the commission indicated that its first map might have violated a state constitutional provision that discourages the splitting of counties unless necessary.

Brown, of the Brown Law Office in Columbia, argued that neither map passes constitutional muster. Once the appellate judges put out the first map, their job was done and they had no lingering authority to revise it, Brown said, so the second map is void.

But the first map is also problematic, he said, because it splits too many counties into more than one senate district. Brown urged the court to invalidate the Senate map and have Missouri’s governor restart the process from scratch.

The Attorney’s general’l Office urged the court to uphold the second Senate map, although it also argued that the first map was constitutional. Assistant Attorney General Jeremiah Morgan asked the court to give the appellate commission some leeway, arguing that while the constitution doesn’t explicitly say the judges can revise their maps, it doesn’t forbid it either.

“Do you have any precedent for us making it up?” Chief Justice Richard Teitelman asked at one point.
“I don’t think there’s any caselaw that says you can make things up,” Morgan responded.

The plaintiffs, however, offered a whole new avenue for the judges to take.

‘Organic separation’

Brown argued that the six appellate judges’ job of redistricting violated the “organic separation of powers” between the legislative and judicial branches. He said the court could sever the portion of the state constitution that gives the judges that task — an unprecedented prospect that didn’t seem to sit well with the court.

“So the people got it right with the concept of separation of powers, but they got it wrong later on?” asked Judge Zel Fischer.

“Yes, your honor,” Brown responded.

Filing for state offices begins Feb. 28. Both sides said that if the normal political process can’t come up with a new Senate map by then, then the current Senate districts, which are based on the 2000 census, should continue to be used for the time being.

But the judges indicated that option is also dubious, as the state would be using districts that are clearly out of sync with the population.

“there’s that little thing called Baker v. Carr, which applies one person, one vote,” Teitelman said, referring to the U.S. Supreme Court’s landmark 1962 case. “that’s pretty essential to the process.”

Headaches

The congressional arguments offered, if anything, an even thicker thicket of constitutional issues. Two groups of plaintiffs offered slightly different reasons why the map drawn by Missouri’s Republican-dominated Legislature (over the veto of Democratic Gov. Jay Nixon) should be thrown out.

One group, led by attorney Gerald Greiman, of Spencer Fane Britt & Browne in St. Louis, said the maps were drawn to favor the Republican Party, which he said would get six “safe” districts out of the eight. The other plaintiffs, led by attorney Jamie Barker Landes of Lee’s Summit, said the maps were the product of a “bipartisan gerrymander” that favored incumbents of both parties at the expense of voters.

Both arguments centered on the newly drawn Fifth District, which encompasses portions of urban Jackson County but also extends far to the east into several rural areas. The district is also partially bisected by a teardrop-shaped area from the district to the north. Greiman said the district looked like a “dead lizard” and violates the state constitution’s requirement that districts be as “compact as may be.”

That short phrase offered no end of headaches for the court. All sides agreed that a square or round district would be perfectly compact, while a sinuous district of, say, all the counties along the Missouri River would be unconstitutionally non-compact.

Somewhere, then, between those two extremes is the proper point for a court to strike down a map. But while several of the judges seriously questioned the shape of the Fifth District, they seemed to leave Thursday’s hearing with no guidance as to whether its ungainliness went too far.

The attorney general’l office urged the court to defer to the Legislature’s political judgment and uphold the map.

“The court in the past has been very, very deferential,” said Solicitor General Jim Layton.

Edward Greim, of Graves Bartle Marcus & Garrett in Kansas City who argued on behalf of several lawmakers who intervened in the case, also said that, short of an obviously non-compact district, the court should not get involved.

“There is no good answer to that question,” Greim said. “Different people have different ideas of what compact means.”

Yet that would leave the court with virtually no meaningful review of the redistricting process, Greiman and Landes argued.

1912 case

Redistricting cases are not new in the Missouri Supreme Court, though they are rare. Nearly every lawyer in the case cited a 1912 case, State ex rel. Barrett v. Hitchcock, which involved a challenge to the state Senate districts. The court ultimately held in a lengthy opinion that redistricting was void for procedural reasons, though some members of that court argued in concurring opinions that the majority unwisely discussed the merits of the case and should have simply said it had no jurisdiction. The court’s then-chief justice, Leroy B. Valliant, wrote that “the framers of our Constitution never intended the courts to interfere in such a matter.”

Nevertheless, the Supreme Court has subsequently taken on three Senate or congressional redistricting cases, in 1955, 1962 and 1975, in which the court seemed to settle on a policy of not overturning districts unless the drafters had “wholly ignored and completely disregarded” the constitution.

Several of the judges on Thursday, however, indicated that the standard in those cases might be a little vague and could be revisited. Judge Fischer said those decisions were “cherry picking phrases from other states.”

“Why shouldn’t we look to our own constitution for the standard?” Fischer asked.

The state Senate redistricting case is State ex. rel Molly Teichman v. Carnahan, SC92237. The congressional redistricting cases are Kenneth Pearson, et al. v. Chris Koster, et al., SC92200, and Stan McClatchey et al. v. Carnahan, SC92203.


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