Missouri voters narrowly approved Amendment 3, a measure proposed by Republican legislators to repeal key provisions of the sweeping redistricting reforms passed by voters in 2018. These changes unfortunately will make the upcoming 2021 redistricting process more open to political influence with fewer safeguards against partisan and racial gerrymandering. Nonetheless, important options remain for Missourians to push for fair representation.
Here’s a breakdown of how redistricting in Missouri will work under Amendment 3.
1. Who will draw state legislative districts?
Amendment 3 eliminates the position of nonpartisan demographer and returns map-drawing to two 20-member political commissions, one for each legislative chamber. These commissions will have an equal number of Republicans and Democrats, who will be nominated by political party officials and appointed by the governor. Like in decades past, approving a map will require a 70 percent commission supermajority vote – that is, at least 14 out of the 20 members of a commission must agree on a final redistricting plan.
Because commissioners have tended to come from the ranks of loyal partisans, Missouri’s political commissions have often failed to reach the necessary bipartisan consensus to pass maps, including during both of the last two redistricting cycles. Commission deadlock triggers the convening of a back-up redistricting panel comprised of six Missouri Court of Appeals judges, who take over redistricting.
Given the history of deadlock and the lack of structural incentives for partisan commissioners to agree, Amendment 3 likely could once again result in a six-judge panel drawing the state’s legislative districts in 2021.
2. Who will be counted for representation?
Amendment 3 removes an explicit command in the Missouri constitution to draw districts based on “total population” (that is, all Missourians, including children and noncitizens), as determined by the federal census. Instead it requires that districts be drawn “on the basis of one person, one vote.” Although “one person, one vote” in the legal context has traditionally been understood to require counting all persons, the proponents of Amendment 3 have argued that this language change allows the commissions to ignore children and noncitizens when drawing district boundaries.
However, while this may be their hope, it is not what the language demands. “One person, one vote” refers to a line of Supreme Court cases that require districts within a state to be approximately equal in population. In 2016, the Supreme Court unanimously reaffirmed that counting all residents – the longstanding practice in all 50 states – meets the requirements of “one person, one vote.” In short, Amendment 3 may have deleted clear language, but the change does not actually require Missouri’s map-drawers, be they commissioners or judges, to move away from the longstanding practice of drawing districts based on total population.
And, there’s good reason to believe that departing from total population would not pass legal muster. For one, the Supreme Court’s cases strongly suggest that key constitutional values can be met only by counting everyone. Plus, courts generally don’t allow legislatures to make major changes, especially to fundamental issues like who will receive representation, using vague language that is open to interpretation.
Limiting representation to adult citizens also would go against the practice in all 50 states and, in Missouri, disproportionately harm Black, Latino, and Asian communities. It would open the state to a host of lawsuits under the state constitution, the federal constitution, and the Voting Rights Act. And if that weren’t reason enough, the state is also unlikely to have the data to move away from total population in a reliable and statistically sound way.
To be sure, Missourians must stay vigilant and demand that everyone be counted when districts are drawn. But the six appellate judges, who will likely have the final say, would be wise to avoid departing from the longstanding practice of counting everyone and taking an unprecedented and radical step of limiting who receives representation.
3. What rules will the map-drawers follow?
Amendment 3 weakens the state constitution’s protections for communities of color, relaxes its partisan fairness requirement, and deemphasizes drawing politically competitive districts. This means that fewer safeguards exist to limit redistricting abuses and, as a result, Missourians may have less recourse to challenge bad maps in court. These rollbacks will certainly have negative redistricting consequences, but there are still more protections in place ahead of 2021 than there were in the past.
Notably, Amendment 3 did not eliminate the requirement that communities of color be given an equal opportunity to elect candidates of choice. This provision should provide Missouri’s Black, Latino, and Asian communities an ability to secure fair representation and to challenge discriminatory maps. It could also be another basis for preventing the state from limiting who counts for purposes of representation.
4. What can the public do?
Amendment 3 keeps key transparency and accountability measures that require map-drawers to seek out and incorporate public input and ensure public access to commission meetings and documents throughout the redistricting process. This means Missourians will have opportunities to monitor redistricting and voice concerns over abuses.
Make no mistake, Amendment 3 will make it easier for political interests to steer the redistricting process with fewer checks to limit their impact. But, by staying engaged and using the accountability mechanisms that have survived, the public can help keep abuses limited and ensure that all Missouri’s communities are respected and all Missourians counts when districts are drawn.