Deciding where to draw the line: compactness as a protection against gerrymandering in Missouri redistricting.

• Author: Bradshaw, Stephanie

Pearson v. Koster, 367 S.W.3d 36 (Mo. 2012) (en banc)

1. INTRODUCTION

   Every ten years, the release of the U.S. Census triggers a tidal wave of political ramifications that ripple from coast to coast. The census reflects the fluctuation in population among the states, necessitating a shuffling of, among other things, state legislative and congressional districts. (1) States are awarded Congressional representatives based on their populations: the greater the population, the greater the representation. (2) While some states gain representatives and others lose them, the outcome is the same: districts must be redrawn. (3) In what has been likened to a "periodic comet," challenges by citizens to this redistricting frequently arise. (4) Behind this litigation is often the fear that the authorities entrusted with the task of producing district maps will abuse their discretion and, in a practice known as "gerrymandering," draw districts that dilute the voting strength of particular groups. (5) Article III, section 45 of the Missouri Constitution contains a provision that acts to combat this practice, requiring that districts be "as compact ... as may be." (6) Missouri courts have consistently expressed the necessity of this "compactness requirement," stating, "The protection of this constitutional provision applies to each Missouri voter, in every congressional district. 'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.'" (7) However, the effect of a century of redistricting litigation, culminating in the recent Supreme Court of Missouri case Pearson v. Koster, has been to weaken this provision rather than strengthen it. In order to reinforce state protections against gerrymandering, Missouri courts must interpret this constitutional requirement in a way that ultimately holds redistricting authorities responsible for justifying gross deviations from the standard of compactness.

2. FACTS AND HOLDING

   With the release of the 2010 Census in early 2011--and as a result of a slump in population growth compared to that of other states--Missouri lost one member of its delegation to the U.S. House of Representatives, reducing the number of Missouri representatives from nine to eight. (8) Pursuant to the state constitution, Missouri's General Assembly (General Assembly) is vested with the duty to reevaluate, and subsequently redistrict, the state's congressional districts. (9) Article III, section 45 of the Missouri Constitution provides:

   When the number of representatives to which the state is entitled in the House of the Congress of the United States under the census ... is certified to the governor, the general assembly shall by law divide the state into districts corresponding with the number of representatives to which it is entitled, which districts shall be composed of contiguous territory as compact and as nearly equal in population as may be. (10) Upon holding hearings throughout the state, the General Assembly approved the new congressional redistricting map (the Map) in April 2011, and it went into effect as part of House Bill 193. (11) After surviving a veto by Governor Jay Nixon, the Map was officially adopted on May 4, 2011. (12)

   Following its release, two groups of plaintiffs immediately challenged the Map. (13) Both groups sought the same outcome: that the court invalidate the Map to prevent the government from conducting elections under its framework and, ultimately, that the General Assembly draw a new map to take its place. (14) The "Pearson plaintiffs" and the "McClatchey plaintiffs" (15) (collectively referred to as Plaintiffs) filed separate petitions contesting the validity of the Map. (16) Both actions were filed in the Circuit Court of Cole County in Jefferson City. (17) Naming Attorney General Chris Koster and Secretary of State Robin Carnahan as defendants, the Pearson plaintiffs alleged several claims, chief among which was the assertion that the Map failed to meet the constitutional standard that districts be as compact as may be. (18) The McClatchey plaintiffs, who named Carnahan as the sole defendant, also took issue with the compactness of the Map's districts. (19) Specifically, Plaintiffs alleged that districts 3 and 5 were "particularly suspect" due to the meandering nature of their boundary lines. (20) Plaintiffs characterized this lack of compactness as an attempt at political gerrymandering by the General Assembly. (21) Defendants Koster, Carnahan, and intervening defendants State Representative John J. Diehl and State Senator Scott T. Rupp (22) (collectively referred to as Defendants) responded by filing motions to dismiss or, in the alternative, for judgment on the pleadings. (23) After oral arguments, the court entered an order dismissing both cases. (24) Plaintiffs subsequently appealed to the Supreme Court of Missouri. (25)

   In Pearson I, (26) the supreme court consolidated the two cases, officially merging the Pearson plaintiffs and the McClatchey plaintiffs into a single group. (27) Reviewing Plaintiffs' claim regarding the districts' compactness, the court stated that the evaluation should be limited to an objective inquiry: whether, under the evidence presented, the districts actually comply with the constitutional mandate that they be "as compact ... as may be." (28) In articulating this objective standard, the court expressly rejected the proposition that good faith, or lack thereof, by the General Assembly should have any bearing on the analysis. (29) The court held that the trial court erred in dismissing Plaintiffs' claims regarding the compactness of the Map's districts. (30) However, the court did not make any factual determinations, instead stating, "It is a question of fact, yet to be tried" whether the districts meet the standard of compactness. (31) Consequently, the court remanded the case to the trial court with instructions to conduct an evidentiary hearing on this issue. (32) On remand, both Plaintiffs and Defendants presented evidence regarding the compactness of the challenged districts. (33) Once more, the trial court entered judgment in favor of Defendants, finding that Plaintiffs had failed to show that the districts did not meet the standard of compactness. (34) The court emphasized that the requirement does not necessitate absolute precision. (35) Plaintiffs again appealed to the supreme court. (36)

   The supreme court took up Plaintiffs' second appeal in the instant case. In Pearson II, (37) Plaintiffs asserted that "the trial court's judgments erroneously interpret the constitutional standard for compactness and ... the judgments are against the weight of the evidence." (38) The court focused on the language of the compactness provision, again setting forth an objective standard and rejecting the argument that good faith by the legislature is a relevant consideration. (39) Affirming the trial court's judgment, the court found that it "did not erroneously declare the meaning of 'as compact ... as may be'" under the constitution and that--deferring to the trial court's findings of fact--Plaintiffs failed to prove that the Map violated this standard. (40) Like the trial court, the supreme court stressed that the compactness standard is not a provision that can be met with complete accuracy. (41) Instead, the court emphasized that "mandatory and permissible recognized factors can impact the configuration of district boundaries," including natural and historical boundary lines and the boundaries of political subdivisions. (42) The court held that the Map did not contravene Article III, section 45 of the Missouri Constitution because the irregular shapes of the contested districts were the result of such permissible factors. (43) Therefore, the Map was enforceable. (44)

3. LEGAL BACKGROUND

   As was the case in Pearson II, issues of redistricting typically arise in the wake of the release of the U.S. Census. Every ten years, the U.S. Census Bureau, a subdivision of the U.S. Department of Commerce, conducts a nationwide census (45) Questionnaires delivered to households across the nation generate a slew of data, measuring the population of cities, counties, and states. (46) These statistics perform various functions, one of which is to ensure that legislative districts, both on the state and federal levels, reflect their respective population numbers. (47) Article I, section 2 of the U.S. Constitution, establishing the census, states in pertinent part:

   Representatives ... shall be apportioned among the several States which may be included within this union, according to their respective Numbers. ... The actual enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. (48) Thus, the release of new census data necessitates the redrawing of district lines. (49) The authority charged with performing this redistricting varies depending on whether districts are being drawn for state or federal legislative purposes. (50) In cases of federal legislative redistricting in Missouri, the General Assembly is vested with the power to divide the state into districts. (51) However, as a result of this power, new maps often give rise to a fear that the General Assembly will abuse its discretion and draw districts that work to weaken the vote of particular groups, specifically the minority political party. (52) This tactic, known as political gerrymandering, is "[t]he practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength." (53)

   Due to these concerns, legislative power in matters of redistricting is not absolute; both the federal government and state constitutional provisions place limits on...