As the Missouri General Assembly is poised to give voters another chance to decide how to draw state House and Senate maps, one of the lesser-discussed parts of the debate is how judges will gain expansive power if voters scrap the Clean Missouri system.
Under a ballot measure that recently passed the Senate and will likely be approved in the House, bipartisan commissions will have first crack at redistricting instead of a demographer. But the truth is the commissions have been historically irrelevant because they tend to deadlock along party lines and then turn over authority to appellate judges.
There’s been little insight into how the judges actually came up with House and Senate districts — until now.
In response to a list of questions from St. Louis Public Radio, the six-member commission of appellate judges provided an extensive look into how it came up with House and Senate maps in 2011. The account, written on behalf of the members by Senior Judge James Welsh, responds to a number of concerns that have leveled over the years.
“None of the members sought appointment,” Welsh wrote. “All of us knew when we accepted the appointment that it was a thankless job, but when the court calls there is really only one acceptable response and it is ‘yes.’”
Welsh also acknowledged that the end product of their toil did not make a lot of people happy. Many proponents of Clean Missouri, which doesn’t involve appellate judges in any step of the district-drawing process, don’t believe that the judiciary has done an effective job of producing maps.
Others, though, believe it’s reasonable to include judges in state legislative redistricting, because they don’t face the same pressures as members of the bipartisan commission. Voters will likely make the final call later this year.
The power of the courts
Under the Clean Missouri system that voters approved in 2018, a demographer would draw House and Senate maps — with an emphasis on partisan fairness and competitiveness. Bipartisan House and Senate commissions would have a chance to overrule the demographer if seven out of 10 members object under certain circumstances.
Sen. Dan Hegeman’s resolution, which will likely make it to the 2020 ballot, does away with the demographer, and instead has bipartisan commissions or appellate judges draw House and Senate maps. That proposal also makes compactness and contiguity a much higher priority than a formula aimed at stoking partisan fairness and competitiveness.
For decades, commissions and judges were responsible for state legislative redistricting. But since 1991, judicial apportionment commissions have been involved in drawing five out of six maps. Four of these maps were adopted, while one was struck down in court.
The Missouri Supreme Court is responsible for appointing a panel of appellate judges to draw maps when the commissions deadlock. And once that happened in 2011, the state high court appointed Welsh, Lisa White Hardwick, Roy Richter, Robert Dowd Jr., Don Burrell and Nancy Rahmeyer to come up with House and Senate districts.
Welsh said the judges met with Attorney General Chris Koster’s staff to get up to speed on the legal requirements of their task. They also met with an Office of Administration demographer about the tools that were available from that office.
Welsh said while the demographer offered to provide some history of prior political party affiliation of the population, “we chose not to have that information provided to us as we drew our maps, thereby removing any consideration of political affiliation from our analysis.”
The commission met publicly in Jefferson City to gather input from interested parties—including sitting state lawmakers who had suggestions on how to draw particular districts. Welsh said the commissioners received a considerable number of submissions from political parties and citizens groups of political and nonpolitical affiliations.
"No outside contact of any kind was tolerated once we commenced deliberations,” Welsh said.
Welsh described the deliberations as “exhaustingly complex.” While he said it would be inappropriate to comment in detail on the discussions, Welsh added that the judges “desired to address the legal requirements above all else.”
“We wanted districts that were as nearly equal in population as possible,” Welsh wrote. “We wanted districts as compact and contiguous as possible while complying with federal voting rights laws.”
The commission, Welsh said, started with a “clean” map. The judges thought they could balance the legal requirements by starting in densely populated St. Louis and Kansas City before moving into exurban and rural counties.
“Many iterations were drawn and redrawn in this attempt,” Welsh wrote. “Sometimes the slightest change resulted in unintended consequences. It was trial and error, repeat and retry, until the final result was acceptable to all of us. I do not believe any political considerations played any part in the drawing of the maps.”
After the judges were finished with their work, Welsh said the judges determined they would let the map “speak for themselves” — similarly to a judicial opinion.
Members of both political parties were furious that the House map placed a slew of incumbents into the same districts. That prompted sitting lawmakers to move into adjoining districts, run against another incumbent legislator in a primary, or retire.
"And I think it did a disservice to the voters and the citizens of this state who'd elected these people and now suddenly their incumbent is taken away from them,” said then-House Majority Leader Tim Jones after the maps were released in 2011.
The House map, though, withstood a legal challenge and remains in effect.
The Senate map that the judges created suffered a different fate: The Missouri Supreme Court agreed with detractors that the judges had erred by splitting certain counties up — which required a second bipartisan commission to spring into action and approve a map. Under tight time constraints, the second bipartisan commission ended up coming up with the Senate map that’s currently in place.
Should judges be involved?
There has long been a difference of opinion about whether appellate judges should be involved in state legislative redistricting.
During a 2018 interview, former U.S. Sen. Jim Talent noted that appellate judges don’t face the same political pressures as members of bipartisan commissions—especially since they only face retention, as opposed to direct, elections.
“Now, judges were all Republicans or Democrats at one time. They have their leanings,” said Talent, who was part of an unsuccessful effort to defeat Clean Missouri in 2018. “But they are as nonpartisan and official that you can find serving under the Missouri Constitution. These are appellate judges. They don’t run. They don’t deal in partisan issues all the time. And they are supposed to follow the law.”
But some see how the judges performed in 2011 as a big reason not to include them in the redistricting process. One person who holds that opinion is Joan Bray, a former Democratic state senator who was part of an unsuccessful lawsuit to overturn the House map. Back in 2011, Bray was part of a group that submitted House and Senate maps aimed at spurring more competitive elections.
Bray’s lawsuit contended that the districts the judges drew weren’t actually compact or contiguous—especially since some districts weren’t contiguous because they are split by a river that requires travel outside the district to be able to cross it by bridge. The lawsuit pointed out that some House districts had different populations than others.
“I just find it really unfortunate that Missouri used to do it that way,” Bray said.
She also said it's not out of the question that some of the communication that judges had with interested parties before they went into deliberations could have influenced the map. And she questioned whether judges have expertise to engage in redistricting—pointing to how the Missouri Supreme Court threw out the judges’ Senate map.
“They’re the least prepared to do the most political job,” Bray said. “Nothing in their training or their work prepares them to do the most political job in this state.”
Sean Soendker Nicholson, the campaign director for Clean Missouri, has also criticized how the appellate judges did most of their key work away from public view. He also said the result of the judges’ work was a map full of uncompetitive districts, something he added that Clean Missouri seeks to change with its emphasis on competitiveness and partisan fairness.
“I think what matters are the results,” Nicholson said. “And the net effect of the maps that were approved in 2011 and 2012 … was a world where there's almost no functional competition, and no ability to hold your representatives accountable of either party.”
Nicholson also said Hegeman’s proposal does not return Missouri to the same system that was in place back in 2011. He said there’s language in Hegeman’s ballot item aimed at increasing the influence of political parties by changing up the size and compositions of bipartisan commissions.
“They are envisioning a world where those commissions with commissioners picked by state parties have more power than they've ever had before,” he said.
Lowell Pearson is an attorney who was part of an unsuccessful lawsuit aimed at keeping Clean Missouri off the ballot—and a member of the bipartisan commission that implemented the Senate map. Even though he’s not a fan of Clean Missouri, Pearson added that he also doesn’t like judges getting involved in the redistricting process.
“Judges ought to be doing judicial functions, and this clearly isn’t one,” Pearson said.
“It’s very detailed work. We sat for hours with a very sophisticated software system that eight years later would be three times as sophisticated as what we had,” Pearson said. “But we could literally look at districts block by block. I don’t think the judges frankly know how to do that. It wouldn’t be their job to know how to do that. And I think we get a better work product frankly where we have interests who are going to advocate for their own side—and they’re going to come to a compromise.”
Welsh said the criticism of the judges’ work in 2011 was not surprising.
“We anticipated no legislators wanted their districts changed, so all would be disappointed,” Welsh said. “We were correct. But judges make hard decisions for a living, and sometimes those decisions are unpopular as well. Criticism, while never pleasant, is sometimes just part of the job.”
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