Republicans and Democrats seem to agree on at least one thing: The courts need to intervene in Missouri’s congressional redistricting stalemate.
The open questions, though, are what type of judge can actually act — and is it too late to do anything this year?
Two lawsuits have been filed in recent weeks by attorneys for both Democratic and Republican interests over the inability for the Missouri General Assembly to redraw the state’s eight congressional districts. Their argument to Cole County judges is basically the same: that Missouri’s Constitution requires districts to be roughly equal in population and that using the 2011 lines to conduct elections would be a violation of that document.
“If the state cannot or will not enact a new congressional plan and map, then this court should adopt its own congressional plan and map and extend or create a new filing period for such districts to ensure candidates can file in the proper congressional districts in advance of the August 2, 2022, primary election,” said a lawsuit filed on behalf of three Missouri Republican Party officials late last month.
Another lawsuit that involves prominent Democratic attorney Marc Elias’ firm also contends “the significant population shifts that have occurred since the 2010 Census, and the publication of the results of the 2020 Census, Missouri’s congressional districts — which were drawn based on 2010 Census data — are now unconstitutionally malapportioned.”
“Any future use of Missouri’s current congressional district plan would violate Plaintiffs’ constitutional right to cast an equal, undiluted vote,” says a lawsuit that was propelled by several Missouri voters and is being handled in Missouri by attorney Chuck Hatfield.
Even if both of the suits make valid points, it’s an open question what state judges can do from a practical standpoint.
Secretary of State Jay Ashcroft said the Missouri Constitution doesn’t give state judges the authority to redraw districts — adding that the legislature is clearly responsible for drawing the lines.
“The Missouri Constitution specifically and only gives authority to the legislature to draw the map. The Missouri Supreme Court does not have that authority,” Ashcroft said. “We're a nation of laws. They don't just get to decide we're going to do something we don't have the authority to do. I don't get to decide that I'm suddenly going to be able to pull people over like I’m a highway patrolman. I’m not.”
In a statement, Marc Ellinger and Lowell Pearson, two attorneys who are handling the suit on behalf of state Republican Party officials, said: “The Missouri Constitution provides that the State shall reapportion the districts. The lawsuit asks the court to order the State to do so and to reopen filing for two weeks when the State does so. Any discussion of other issues is premature at this point.”
Hatfield did not respond to several requests for comment on the lawsuit in which he’s involved.
Federal action could be needed
Both Ashcroft and Washington University School of Law professor Travis Crum said there is precedent for federal courts to get involved in redistricting pursuits. Crum said the typical course of action is for a three-judge panel to end up drawing new lines.
And that setup, Crum said, will have an impact on what the final product would look like. It’s unlikely, for instance, that the court would adopt what’s known as a 7-1 map that makes Democratic U.S. Rep. Emanuel Cleaver’s 5th District in Kansas City unwinnable for Democrats.
“If you have three judges in the room, they're gonna have to agree amongst themselves that this map is constitutional,” Crum said. “And I think that sort of pushes the process for adopting a ‘least change map’ now.”
Currently, Missouri has five strongly Republican districts, two heavily Democratic districts and a district in the St. Louis suburbs, represented by U.S. Rep. Ann Wagner, R-Ballwin, that’s considered a swing district.
Ashcroft, though, said federal judges may not intervene in Missouri this year, based on a legal principle that the judiciary doesn’t like getting involved in election-related issues this close to Election Day. He pointed to a decision regarding Alabama redistricting that used that legal precedent to hold off on redrawing the congressional districts.
“I could see the court saying: ‘Yep, you're supposed to do that. And next year, you have to do this,'” Ashcroft said. “And then we'll go ahead and do that later. But we really don't want to confuse the people to state as we're getting close. [The state’s filing period] already ended. We're getting close to the time when our election authorities are gonna have to send off their ballots to get them printed, and we need to know who's supposed to get which ballots. And we're just running out of time.”
Crum, though, noted that the Alabama case featured a lower court ordering a redraw over Voting Rights Act issues — as opposed to legislative paralysis in Missouri over coming up with new congressional lines. “Missouri has failed to enact a congressional redistricting map, and you cannot use the 2010 map, because it's grossly malformed by this point,” he said.
The legislature can forestall any chance of the judicial branch getting involved in drawing a congressional map by coming to some sort of compromise. Missouri’s legislative session is slated to continue until mid-May.
Follow Jason on Twitter: @jrosenbaum
