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Missouri Amendment 3 Passed, What Does that Mean for Redistricting?

Amendment 3 unraveled the reforms passed in Missouri by ballot initiative in 2018, removing key redistricting safeguards. But opportunities still remain in the fight for fair maps.

Last Updated: November 5, 2020
Published: November 5, 2020

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.