AMENDEMENT 3 LEGISLATIVE REDISTRICTING

OVERVIEW

Amendment 3 seeks to repeal the Clean Missouri redistricting reforms Missouri voters overwhelmingly ratified in 2018 that give the job of drawing new state legislative districts to a non-partisan state demographer and establish constitutional criteria that require districts to be drawn in a way that maximizes partisan fairness and competitiveness while minimizing the number of “safe” districts dominated by one political party.

Under Amendment 3, redistricting commissions consisting of members handpicked by the state Democratic and Republican parties would draw new districts. Creating districts that are competitive and fair would no longer be a top priority.

In addition, Amendment 3 would exclude children and other residents who aren’t eligible to vote from being counted for redistricting purposes, deviating from the practice of counting all residents that Missouri and every other state has followed since the nation’s founding. The change could result in some lawmakers representing substantially more actual residents than others, thus granting some communities disproportionate representation.

Republicans strongly opposed Clean Missouri and immediately after its ratification pledged to make repealing it a top priority. The Republican-controlled General Assembly placed Amendment 3 on the Nov. 3 statewide ballot with the passage of Senate Joint Resolution 38. The Senate approved it on Feb. 10 by a vote of 22-9 with a lone Republican joining unanimous Democrats in opposition. The House of Representatives voted 98-56 to grant SJR 38 final passage on May 13. Fourteen House Republicans opposed the measure while just one Democrat supported it.

Amendment 3 includes other provisions unrelated to redistricting that are included as enticements to win voter support. One would replace an existing $5 cap on the value of lobbyist gifts to lawmakers with a flat ban in most instances. The other would lower the limit on campaign contributions to Senate candidates from $2,500 per election to $2,400, while leaving contributions to House candidates unchanged at $2,000.

The coalition that championed ratification of the Clean Missouri amendment two years ago has mobilized to oppose Amendment 3, which opponents dub Dirty Missouri. As of Sept. 28, there had been no visible campaign in support of Amendment 3. While the Missouri Farm Bureau on Sept. 23 established a campaign committee to advocate for the measure’s passage, given the late stage of the election cycle, it’s unclear how aggressively Farm Bureau will engage and how much of an impact its efforts will have.

BALLOT LANGUAGE BATTLE

Although the Secretary of State’s Office usually prepares the ballot language for measures placed before voters, the General Assembly exercised its statutory prerogative to write its own ballot question as part of SJR 38. However, the Clean Missouri group immediately sued, alleging the legislature’s language was deceptive and intentionally designed to mislead voters.

The final ballot language prepared by the Western District panel, followed by the official fiscal estimate prepared by the State Auditor’s Office, which was neither challenged nor judicially altered, says:

Shall the Missouri Constitution be amended to:

• Ban gifts from paid lobbyists to legislators and their employees;

• Reduce legislative campaign contribution limits;

• Change the redistricting process voters approved in 2018 by: (i) transferring responsibility for drawing state legislative districts from the Nonpartisan State Demographer to Governor-appointed bipartisan commissions; (ii) modifying and reordering the redistricting criteria.

State governmental entities expect no cost or savings. Individual local governmental entities expect significant decreased revenues of a total unknown amount.

Because Attorney General Eric Schmitt, a Republican, declined to appeal to the Missouri Supreme Court on behalf of the state, the Western District’s rewrite is final and is what voters will see on the Nov. 3 ballot.

CLEAN MISSOURI REVIEWED

From 1966 until 2018, partisan commissions consisting of equal numbers of Democrats and Republicans got first crack at drawing new state legislative districts following each decennial U.S. Census. There were two separate commissions, one charged with drawing the 34 Senate districts with the other dedicated to creating the 163 House districts.

Although the governor appointed the commissions, he was required to pick members from lists of party loyalists submitted by the state Democratic and Republican parties, so his role in shaping the commissions’ membership was limited. If the partisan commissions failed to agree, which happened more often than not, the task passed to a special commission of six Missouri Court of Appeals judges chosen for the job by the state Supreme Court.

Clean Missouri, which voters ratified with 63 percent support in November 2018, created a new position of non-partisan state demographer and put that person in charge of legislative redistricting. The demographer is chosen by the top Democratic and Republican Senate leaders from among the applicants for the post. If the two leaders fail to agree, they can each eliminate one-third of the applicants from consideration, and the demographer is chosen by random lottery from among the remaining applicants.

While the partisan commissions still exist under Clean Missouri, their role is limited to reviewing the maps produced by the demographer. A commission can amend the demographer’s plan, but only if at least 70 percent of its members agree. If no changes are approved, then the redistricting maps are finalized as presented.

Under Clean Missouri, the top criteria for drawing districts is “partisan fairness,” which is meant to ensure that the number of legislative seats a given party holds is roughly equal to that party’s statewide popular vote total. The secondary goal is to enhance competitiveness to maximize the number of districts that are winnable by either party and minimize the number of districts where one party is dominant.

As has always been the case with previous redistricting systems, Clean Missouri requires districts to be roughly equal in population and consist of contiguous territory. While compact districts are preferred, compactness is subservient to other criteria.

If not replaced by Amendment 3, the Clean Missouri system is scheduled to be used for the first time next year when the process for creating new districts based on the results of the 2020 U.S. Census gets underway. The revised legislative districts will be used starting with the 2022 elections and ending with the 2030 elections.

PROPOSED AMENDMENT 3 CHANGES

Amendment 3 would eliminate the position of state demographer and restore the authority of the partisan House and Senate redistricting commissions. As with the pre-Clean Missouri system, if one or both of those commissions fail to agree on new district maps, then the redistricting task would be kicked to a six-member judicial commission chosen by the Supreme Court.

While the partisan fairness and competitiveness criteria would remain under Amendment 3, they would be the least important considerations when drawing new maps, with the focus instead on compactness and trying to keep districts entirely within municipal and county boundaries. Amendment 3 would allow for a deviation of up to 15 percent from the ideal when determining partisan fairness, which critics say could substantially exacerbate partisan gerrymandering.

Amendment 3 would delete an existing constitutional requirement that legislative districts be based of the total population of the state as determined by the last U.S. Census and replace it with amorphous language saying “districts shall be drawn on the basis of one person, one vote.” During legislative debate over SJR 38, the measure’s supporters said this change is intended to ensure that only eligible voters are counted when crafting new legislative districts, even though those excluded would still be entitled to representation. Such a limitation would prevent children, non-citizens and other Missouri residents who for whatever reason aren’t eligible to vote from being counted, thus arbitrarily skewing the populations of legislative districts.

In the event either the partisan or judicial redistricting commissions produced maps that violated constitutional requirements, Amendment 3 would erect new barriers to filing legal challenges by limiting who can bring such a challenge and severely restricting the ability of courts to declare redistricting plans unconstitutional. To have legal standing to challenge a redistricting plan, a voter would have to prove they would be individually harmed by it – a high legal bar – instead of merely showing a plan violated constitutional requirements.

During the last redistricting cycle in 2012, the state Supreme Court ruled a Senate map crafted by the appellate commission repeatedly violated a constitutional prohibition against splitting counties unless a county has enough population for more than one district. After tossing out the Senate map, the high court ordered the redistricting process to start over. Such a lawsuit might not be successful under Amendment 3’s restrictions on litigation.

ARGUMENTS IN SUPPORT OF AMENDEMNT 3

Missouri voters didn’t understand what they were voting on in 2018 and deserve a chance to reconsider before the next redistricting cycle in 2021.

The 2018 redistricting system will result in sprawling districts that connect areas with little in common. Amendment 3 will prevent that from happening.

Legislative districts should be drawn to represent specific local communities and the people who live in them, not carve up communities to achieve idealistic goals.

Clean Missouri was designed to ensure that more Democrats are elected to the legislature, giving them through the redistricting process what they have been unable to achieve at the ballot box.

There are no safeguards to ensure the so-called “non-partisan” state demographer doesn’t draw new districts that favor one party over the other.

Redistricting is too important a task to entrust to the judgment of a single, unelected person.

For more than five decades, Missouri legislative districts were drawn either by bipartisan commissions or appellate judges, and the system worked well. Amendment 3 would restore that system.

Requiring districts to be drawn based on “one-person, one vote” will provide better representation by focusing them on the number of eligible voters instead of total population.

ARGUMENTS IN OPPOSITION TO AMENDMENT 3

Missouri voters decisively said just two years ago that they wanted to reform the state’s legislative redistricting process to eliminate partisan gerrymandering. Their decision should be respected.

For Republicans to attempt to repeal the new redistricting system before it has even had a chance to be implemented is unconscionable and shows they fear that fair and competitive legislative districts will threaten their hold on power.

Clean Missouri constitutionally requires a non-partisan state demographer to draw districts that are competitive and fair without regard to partisan interests. Amendment 3 will return to a system that is controlled by the two major political parties for the benefit of the parties.
Republicans are willing to resort to deception in an attempt to trick voters into ratifying Amendment 3 by writing ballot language that completely failed to mention its primary purpose of repealing the Clean Missouri redistricting reforms.

Two separate courts declared the Republican legislature’s ballot language to be false and misleading and ordered it to be rewritten.

Provisions highlighted in the ballot language that reduce the value lobbyist gift to lawmakers from $5 to $0 and slightly reduce the maximum campaign contribution to Senate candidates are included in Amendment 3 solely to distract voters from its changes to the redistricting process.

Amendment 3 will exclude children and others who aren’t eligible to vote from being counted for redistricting purposes, denying fair representation to all Missourians who reside in undercounted districts.

Instead of requiring legislative districts to be fair and competitive, Amendment 3 would allow for partisan germanders that are even worse than what Missouri had under its old redistricting system.