At the end of a nearly 4½-hour public hearing, the 20-person commission redrawing Missouri House district maps heard from one expert who called the task daunting.
Speaking to a commission made up of 10 Republicans and 10 Democrats in St. Louis County last week, former Missouri Solicitor General Jim Layton noted that the Missouri Constitution makes success difficult. Since at least 14 of the 20 members need to approve a map, many observers of the process have felt the commissions are doomed from the start.
But Layton, who handled redistricting litigation for the state 10 years ago, warned that this year is much different. Because of delays in the census, the commission’s failure will likely mean the House and Senate maps won’t be set until well into the 2022 election cycle. That would almost certainly require the legislature to move the filing deadline for state legislative seats — and throw the primary into chaos if the maps are changed in the summer.
“If you are currently operating or begin to operate or you continue to operate as caucuses rather than 20 individuals trying to do the best for Missouri, you will fail,” Layton said.
“So please: Set aside all your preconceptions,” he added. “Set aside all of these things you’re being whispered in the back. Set aside everything you’ve said in your caucuses.”
While some commissioners are optimistic they can defy precedent and approve the maps by the beginning of 2022, others believe that the commissions are not particularly important — and that a panel of appellate judges will end up being the true deciders of what House and Senate districts look like.
Missouri’s state legislative redistricting process is completely separate from how Missouri’s congressional maps are drawn. While Missouri lawmakers come up with and vote on the state’s eight U.S. House district seats, they have no direct involvement in state House or Senate maps. They can, and do, make suggestions on those maps, though.
Born to lose?
Many of the people on the House and Senate redistricting commissions have political or even electoral experience. For example: Senate commission Chair Marc Ellinger is a former GOP presiding commissioner of Cole County, and Senate commission Co-Chair Susan Montee is a former Democratic state auditor.
The constitution states that a commission needs support from 7/10ths of its members to approve a map. Historically, that usually doesn’t happen. Between 1981 and 2012, the Senate commission has only agreed to one map. The House commission hasn’t approved one since 1991.
There’s usually no incentive for people to vote for the opposite party’s maps, especially since Republicans and Democrats have much different ideas about advantageous redistricting.
“Here in Missouri, it’s been planned to gridlock,” said Travis Crum, a law professor at Washington University in St. Louis.
The appellate judges’ role in redistricting has been an issue. Because those officials are appointed and not elected, they’re typically seen as less political than either partisan redistricting commissioners or the legislature. They also have not been shy about creating maps that place incumbents in the same district, as was the case in 2011.
But they also tend to lack expertise in the nuances of redistricting. Layton pointed out that he couldn’t successfully defend the appellate judges’ Senate maps in 2011 because they created a map that divided counties contrary to restrictions in the Missouri constitution.
“I think judges understand the process better than people assume that they do,” Crum said. “But I do agree that judges don’t like being drawn into this political process and are reticent to draw these maps. Two solutions that you usually see judges adopt is … one that’s called a ‘least changed map’ to keep the last map and make the minimum number of changes you need in order to comply with population changes.
“Another is to hire an outside expert, or so-called special master,” he added. “And oftentimes these masters come in and have expertise in the area.”
Ticking clock
So far, there’s not a lot of evidence to show that the House and Senate commissions will defy tradition. Among other things, the House commission had a lengthy standoff over who should be the chairman — while the Senate commission disagreed over the number of public hearings there should be.
But Layton said there are potentially dire consequences if the commissions fail this time. Because appellate judges would not be able to start their work until early January, he believes there’s basically no chance of completing the maps before the end of the 2022 candidate filing period — which is currently slated for March.
And that’s not the only land mine Layton pointed out. He noted that a 2020 ballot measure that set up the current redistricting process has very specific criteria, including some restrictions on how counties and municipalities can be split. He noted that it took until May 2012 to finish off all litigation from the 2011 redistricting process. If the criteria aren't followed, it could mean that successful litigation changes state legislative districts in the summer of 2022 — right before the August 2022 primary.
“If you really put together a plan that meets all the constitutional criteria and you do that quickly, then you can spend your time working around the edges — but you’re really only going to be working around the edges,” Layton said.
Republican Jerry Hunter is the chairman of the House commission and has served on prior commissions that have deadlocked. He stressed that commissioners are trying their best to approve a tentative map in December and a final one in early January. But he acknowledged their task is difficult, especially since the House commission is responsible for 163 districts compared to 34 for the Senate commission.
“Their task appears to be easier than what our task is on the House commission,” Hunter said.
An easier road for the Senate
There are several other reasons why the Senate commission may have a slightly greater chance of success:
- In 2011, parts of rural Missouri still tilted toward Democrats — meaning there were more areas of contention and more reasons why a commission would deadlock. But a decade later, all of outstate Missouri is heavily Republican, and there’s really no way to draw districts in those areas that would be competitive for Democrats.
- A source of conflict in 2011 and 2012 was whether to pair Democratic-leaning Boone County with Howard County (which, at the time, was fairly Democratic-leaning) or Cooper County (which was and is heavily Republican). But because Boone County has enough population to be its own Senate district, that issue is off the table.
- The Missouri Constitution makes it fairly difficult to draw Senate districts that split smaller counties.
Still, there could be substantial disagreement over how to draw districts in the Kansas City suburbs, Springfield and west St. Louis County. But at least two Senate commissioners from opposite sides of the aisle are optimistic they can come to an agreement.
Democratic commissioner Farrakhan Shegog, of St. Louis County, said he found a lot of policy commonalities with his rural counterparts on the commission.
“And they’re talking about poverty. They’re about miseducation. They’re talking about a lack of health care services,” Shegog said. “They’re talking about the need for infrastructure repair and roads and sewer systems — things like that. And I’m like, ‘Hey, that’s the kind of things that we have going on in the east side of the state in the urban areas.’”
Ellinger, the GOP chairman of the Senate commission, notes that even though the threshold to approve a map is high, it has happened before. He was on a Senate commission that ratified a map in 2012 under daunting time constraints.
“I think everybody’s reasonable and everybody’s interests in the state are served by reaching a successful conclusion and having a plan of apportionment,” Ellinger said.
Follow Jason on Twitter: @jrosenbaum
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