Justia.com Opinion Summary: Plaintiffs, Missouri citizens and voters, filed a declaratory judgment action against the State and secretary of state to challenge the constitutionality of the redistricting plan for the Missouri House of Representatives filed by the nonpartisan reapportionment commission. The trial court permitted three current members of the House of Representatives to intervene in the lawsuit. The court subsequently entered judgment in favor of Defendants, concluding (1) Plaintiff failed to prove that the plan did not meet the constitutional requirements for population, contiguity, and compactness; and (2) the nonpartisan reapportionment commission did not violate the "sunshine law." The court subsequently entered judgment in favor of Defendants. Plaintiffs appealed. The Supreme Court affirmed, holding (1) the trial court did not err in finding that Plaintiffs failed to prove the House reapportionment map was unconstitutional and in permitting intervention by the three House members; an (2) the trial court properly found that the nonpartisan reapportionment commission did not violate the sunshine law. Affirmed.
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SUPREME COURT OF MISSOURI
en banc
BOB JOHNSON, et al.,
Appellants,
v.
STATE OF MISSOURI, et al.,
Respondents.
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No. SC92351
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
The Honorable Patricia Joyce, Judge
Opinion issued May 25, 2012
Bob Johnson and other Missouri citizens and qualified voters (Plaintiffs) appeal
the trial court’s judgment on their declaratory judgment action in favor of the State of
Missouri and Robin Carnahan, the secretary of state (Defendants). On appeal, Plaintiffs
claim that the trial court erred in finding that Plaintiffs failed to prove that the
redistricting plan for the Missouri House of Representatives filed by the nonpartisan
reapportionment commission does not meet the constitutional requirements for
population, contiguity, and compactness. Plaintiffs further claim that the trial court erred
in finding that the nonpartisan reapportionment commission did not violate the “sunshine
law,” chapter 610, RSMo, and in permitting three current members of the Missouri House
of Representatives to intervene in the lawsuit. This Court finds that the trial court did not
err in finding that Plaintiffs failed to prove that the House reapportionment map is
unconstitutional and in permitting intervention by the three House members. This Court
also holds that the trial court properly found that the nonpartisan reapportionment
commission did not violate the sunshine law. Accordingly, the trial court’s judgment is
affirmed.
Factual and Procedural History
The Missouri Constitution provides for 163 members of the House of
Representatives, whose districts are reapportioned after each decennial census of the
United States. Mo. Const. art. III, sec. 2. In 2011, after the president received the 2010
census report, the governor appointed a bipartisan reapportionment commission, pursuant
to Mo. Const. art. III, sec. 2, to develop a new apportionment plan for the House. The
Missouri Constitution requires the bipartisan reapportionment commission to file a plan
that reapportions the representatives “by dividing the population of the state by the
number one hundred sixty-three” and then establishing each district “so that the
population of that district shall, as nearly as possible, equal that figure.” Mo. Const. art.
III, sec. 2. Additionally, the constitution requires that “[e]ach district shall be composed
of contiguous territory as compact as may be.” Id. The final statement of the numbers
and boundaries of the districts, together with a map of the district, required approval by at
least seven members of the commission and had to be filed with the secretary of state by
September 18, 2011. The commission failed to meet the deadline.
Therefore, pursuant to Mo. Const. art. III, sec. 2, this Court appointed a
nonpartisan reapportionment commission, consisting of six judges of the court of appeals,
to file a new apportionment plan with the secretary of state within 90 days.
On
November 30, 2011, the nonpartisan reapportionment commission unanimously signed
and filed with the secretary of state its House of Representatives reapportionment plan.
Plaintiffs filed a declaratory judgment action to challenge the constitutionality of
the plan in the Cole County circuit court on January 27, 2012. Shortly thereafter, three
members of the Missouri House of Representatives 1 sought to intervene in the case under
Rule 52.12(a). The trial court sustained their motion on February 3, 2012. The parties
submitted to the trial court their joint stipulation of facts and corresponding exhibits. 2 In
addition, Plaintiffs submitted the affidavit of Chris Girouard, and the intervenors
submitted the affidavit of Thomas Brooks Hofeller, Ph.D.
In their stipulation of facts, the parties stipulated that the nonpartisan
reapportionment commission did not act in bad faith or with improper motives in creating
the plan. Specifically, the parties stipulated that:
There is no basis for finding that any district was drawn with the purpose of
favoring or disfavoring any group of individuals compared to any other
group of individuals including, but not limited to, any constitutionally
protected or suspect class of citizens[.]
1
Intervenors Jay Barnes, Stanley Cox, and Don Gosen are citizens, residents, taxpayers,
and registered voters of Missouri. Each intervenor is also a member of the Missouri
House of Representatives who intends to run for re-election in 2012 in a district that
would be affected by the plan. Jay Barnes is a representative for district 114 and intends
to run for reelection in district 60; Stanley Cox is a representative for district 118 and
intends to run for reelection in district 52; and Don Gosen is a representative for district
84 and intends to run for reelection in district 101.
2
Neither the state nor the secretary of state offered evidence other than the stipulation of
facts.
3
The parties also stipulated that, while the nonpartisan reapportionment commission held a
public meeting on October 13, 2011, and gave 24-hour notice, it held at least three other
meetings for which “[n]o public notice was posted or otherwise given for these meetings,
there was no public vote to close these meetings, and no journal or minutes for these
meetings was kept.”
Furthermore, the parties stipulated that the nonpartisan
reapportionment commission “did not announce the non-public sessions at which they
made their decisions.”
Plaintiffs’ evidence was an affidavit from Mr. Girouard with attached exhibits.
Mr. Girouard is the legislative director for the Democratic caucus of the House and stated
that he is “an expert in both the operation and capabilities of the [mapping software]”
used by the nonpartisan reapportionment commission. In his affidavit, Mr. Girouard
provides statistical analysis of the plan submitted by the nonpartisan reapportionment
commission, as well as statistical analysis of a map he prepared, and alternative map
proposals from the Republican and Democratic members of the bipartisan reappointment
commission that was unable to reach consensus. According to his analysis, the plan filed
by the nonpartisan reapportionment commission has a “total deviation range” in
population of 7.80 percent, whereas his map and the two maps proposed on August 11,
2011, by the Democratic and Republican members of the bipartisan reapportionment
commission (August 11, 2011, proposals) had total deviation ranges of 0.18 percent, 3.87
percent, and 3.27 percent, respectively. He opines that the boundaries for districts 12, 1518, 21-22, 35-38, 41, 42, 63, 64, 102, and others can be adjusted to create districts that
are more equal in population. Finally, Mr. Girouard asserts that districts 43, 50, 70, 98,
4
and 110 are not contiguous because they are split by a river that requires travel outside
the district to be able to cross it by bridge.
The affidavit of Dr. Hofeller, submitted by the intervenors, details Dr. Hofeller’s
opinions as to the compactness and population equality of the districts in the plan. Dr.
Hofeller holds a doctorate from Claremont Graduate University in American political
philosophy, urban studies, and American politics. He has extensive experience with the
legislative redistricting process: He has assisted in creating computerized redistricting
systems, was a staff director for the United States House subcommittee on the census
from 1998 to 1999, and has drafted and analyzed plans in most states throughout the
country.
Regarding compactness, Dr. Hofeller explains that, although there is no precise
definition of “compactness,” there are various mathematical tests that assist in
determining compactness. Utilizing these methods, he reviewed and scored the map and
“did not find anything in that data that suggest a violation of federal or state compactness
principles.” He compared the compactness scores for the nonpartisan reapportionment’s
plan against the map proposed on August 11, 2011, by the Democratic members of the
bipartisan reapportionment commission, the map proposed by the Republican members
of the bipartisan reapportionment commission, and Plaintiffs’ proposed map and found
that the scores for the plan compared favorably against the other maps. He performed a
similar comparison against legislative redistricting maps from Maryland and Virginia.
Regarding population equality, Dr. Hofeller stated that the total deviation range of 7.81
5
percent is well within the 10.00 percent range that is prima facie valid under the federal
population equality standard for legislative redistricting plans.
After receiving the stipulation of facts and the witnesses’ affidavits submitted by
Plaintiffs and the intervenors, the trial court executed its findings of fact, conclusions of
law, and judgment on February 14, 2012, denying each of Plaintiffs’ claims. Plaintiffs
appeal. 3 On appeal, Plaintiffs claim that the trial court erred in finding that they failed to
prove that the plan is unconstitutional under Mo. Const. art. III, sec. 2. They also claim
that the plan is unconstitutional under Mo. Const. art. I, secs. 2 and 25 because the
districts do not meet the requirements of contiguous territory, compactness, and
population equality. Plaintiffs further claim that the trial court erred in finding that there
was no sunshine law violation when the nonpartisan reapportionment commission held
three closed meetings without public notice 24 hours in advance, held no vote to close the
meetings, and took no journal entries or minutes from the meetings. Finally, they claim
that the trial court abused its discretion in granting the intervenors’ motion to intervene.
The intervention and sunshine law claims are addressed first because, if either claim is
meritorious, the remaining constitutional claims need not be addressed. See State ex rel.
Union Elec. Co. v. Pub. Serv. Comm’n, 687 S.W.2d 162, 165 (Mo. banc 1985)
(constitutional questions should be avoided if the case can be fully determined on other
grounds).
3
On its own motion, this Court took transfer of this case prior to its disposition by the
court of appeals. Mo. Const. art. V, sec. 10; Rule 83.01.
6
Standard of Review
In reviewing the validity of the reapportionment map, claims are “subject to proof
and defenses as in any other lawsuit.” See Pearson v. Koster, 359 S.W.3d 35, 40 (Mo.
banc 2012) (Pearson I). This Court recently clarified the standard of review for courttried civil cases in White v. Director of Revenue. 321 S.W.3d 298, 307-08 (Mo. banc
2010). In White, the Court outlined the role of an appellate court as follows:
In appeals from a court-tried civil case, the trial court’s judgment
will be affirmed unless there is no substantial evidence to support it, it is
against the weight of the evidence, or it erroneously declares or applies the
law. To set aside a judgment as “against the weight of the evidence,” this
Court must have a firm belief that the judgment is wrong.
In reviewing a particular issue that is contested, the nature of the
appellate court’s review is directed by whether the matter contested is a
question of fact or law. When the facts relevant to an issue are contested,
the reviewing court defers to the trial court’s assessment of the evidence.
It is only when the evidence is uncontested that no deference is
given to the trial court’s findings. Evidence is uncontested in a court-tried
case when the issue before the trial court involves only stipulated facts and
does not involve resolution by the trial court of contested testimony; in
that circumstance, the only question before the appellate court is whether
the trial court drew the proper legal conclusions from the facts stipulated.
Evidence also is uncontested when a party “has admitted in its pleadings,
by counsel, or through the [party’s] individual testimony the basic facts of
[other party’s] case.” In such cases, the issue is legal, and there is no
finding of fact to which to defer.
*
*
*
When evidence is contested by disputing a fact in any manner, this
Court defers to the trial court’s determination of credibility. A trial court
is free to disbelieve any, all, or none of that evidence. Appellate courts
defer to the trial court on factual issues “because it is in a better position
not only to judge the credibility of the witnesses and the persons directly,
but also their sincerity and character and other trial intangibles which may
not be completely revealed by the record.” The appellate court’s role is
not to re-evaluate testimony through its own perspective. Rather, the
appellate court confines itself to determining whether substantial evidence
exists to support the trial court’s judgment; whether the judgment is
against the weight of the evidence – “weight” denoting probative value
7
and not the quantity of the evidence; or whether the trial court erroneously
declared or misapplied the law.
Id. (citations omitted).
The application of this standard of review is impacted by which party carries the
burden of proof in the case. In civil actions, the party bearing the burden of proof is the
one “who, as is disclosed from the pleadings, asserts the affirmative of an issue.” Anchor
Centre Partners, Ltd. v. Mercantile Bank, N.A., 803 S.W.2d 23, 30 (Mo. banc 1991).
“When the burden of proof is placed on a party for a claim that is denied, the trier of fact
has the right to believe or disbelieve that party’s uncontradicted or uncontroverted
evidence.” White, 321 S.W.3d at 305. If no evidence is presented or “[i]f the trier of fact
does not believe the evidence of the party bearing the burden, it properly can find for the
other party.” Id.
In a case challenging a reapportionment plan, this Court reviews the plan under
identical standards for review of a statute, even though a plan filed by a reapportionment
commission is not a statute enacted by the legislature.
In State ex rel. Barrett v.
Hitchcock, this Court reviewed the constitutional validity of a reapportionment plan
created by a commission comprised of the governor, secretary of state, and attorney
general, as provided by the constitution at that time. 146 S.W. 40, 41 (Mo. 1912). This
Court stated that:
[T]he Constitution created the [reapportionment commission] for the
express purpose to apportion the state into senatorial districts, and for that
purpose the Constitution gives to it the same power and authority that it
gave to the Legislature proper in that regard; and for that reason both of
them must, and do, stand upon an equal footing before the law and in the
presence of the courts.
8
Id. at 56.
Because the constitution grants the commission the power to perform a legislative
function – i.e., to reapportion congressional districts, Mo. Const. art. III, sec. 45 – the
reasoning in State ex rel. Barrett equally applies to this case. Accordingly, this Court
reviews the constitutional validity of the plan as if it were a statute enacted by the
legislature. It is assumed to be constitutional and will not be held unconstitutional unless
the plaintiff proves that it “clearly and undoubtedly contravene[s] the constitution.” Mo.
Prosecuting Attorneys v. Barton Cnty., 311 S.W.3d 737, 740-41 (Mo. banc 2010); St.
Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo. banc 2011). This Court
will uphold the plan unless it “plainly and palpably affronts fundamental law embodied in
the constitution,” and “doubts will be resolved in favor of the constitutionality” of the
plan. Barton Cnty., 311 S.W.3d at 741 (internal quotations and citations omitted).
Motion to Intervene
Plaintiffs claim that the trial court erred in granting the intervenors’ motion to
intervene in this case.
They contend that the intervenors failed to assert a legally
protectable interest in the case that is not protected adequately by Defendants.
Intervention is permitted by Rule 52.12(a) as a matter of right or by Rule 52.12(b), which
provides for intervention by permission of the court. Rule 52.12. 4
4
A trial court’s
Rule 52.12 provides in relevant part:
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of this state confers
an unconditional right to intervene or (2) when the applicant claims an
interest relating to the property or transaction that is the subject of the
9
decision regarding intervention as a matter of right will be affirmed unless there is no
substantial evidence to support it, it is against the weight of the evidence, or it
erroneously declares or applies the law. See In re Liquidation of Prof’l Med. Ins. Co., 92
S.W.3d 775, 778 (Mo. banc 2003). This Court reviews permissive intervention for abuse
of discretion. Comm. for Educ. Equal. v. State, 294 S.W.3d 477, 487 (Mo. banc 2009).
Intervention generally should “be allowed with considerable liberality.”
In re
Liquidation of Prof’l Med. Ins. Co., 92 S.W.3d at 778; Eakins v. Burton, 423 S.W.2d 787,
790 (Mo. 1968) (noting that the intervention rule should be construed liberally to permit
broad intervention).
The trial court’s summary ruling on the intervenors’ motion to intervene was
reflected in a docket entry stating: “Court sustains Motion To Intervene.” The trial
court’s judgment included findings of fact regarding intervention:
Defendant-Intervenors are citizens, residents, registered voters, and
taxpayers of the State of Missouri. [They] are state representatives, who
action and the applicant is so situated that the disposition of the action may
as a practical matter impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately represented by existing
parties.
(b) Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: (1) when a statute of this state confers a
conditional right to intervene; or (2) when an applicant’s claim or defense
and the main action have a question of law or fact in common; or (3) when
the validity of a statute, regulation or constitutional provision of this state,
or an ordinance or regulation of a governmental subdivision thereof,
affecting the public interest, is drawn in question in any action to which the
state or governmental subdivision or an officer, agency or employee thereof
is not a party, the court may in its discretion notify the chief legal officer of
the state or governmental subdivision thereof, and the state or governmental
subdivision may in the discretion of the court be permitted to intervene,
upon proper application.
10
intend to run for re-election. . . . The particular harms threatened to
Defendant-Intervenors’ interests include their specific and personal
interests in running for re-election in districts established in compliance
with Missouri’s constitution and the delay, uncertainty, and expenditures of
time and resources that they will suffer if the New House Map is
invalidated.
Nothing in the trial court’s order or findings of fact expressly states whether the trial
court intended to allow the intervenors to intervene as a matter of right under Rule
52.12(a) or as a matter of permissive intervention under Rule 52.12(b). The trial court’s
findings regard issues more relevant to permissive intervention under Rule 52.12(b), so
this Court focuses on whether the intervenors were entitled to such intervention.
At issue in this case is whether permissive intervention was appropriate insofar as
Rule 52.12(b) permits intervention when a proposed intervenor’s claim or defense and
the main action have a question of law or fact in common. See Comm. for Educ. Equal.
v. State, 294 S.W.3d at 487. Rule 52.12(b) provides for permissive intervention in three
circumstances: “(1) when allowed by statute; (2) when an applicant's claim or defense
and the main action have a question of law or fact in common; or (3) when the state is
seeking intervention in a case raising constitutional or statutory challenges.” Comm. for
Educ. Equal. v. State, 294 S.W.3d at 487. Proposed intervenors are not entitled to
permissive intervention if they simply will reassert the same defenses, but intervention
can be appropriate when the intervenors can show “interest unique to themselves.” See
id. (emphasis added). Moreover, “[p]ermissive intervention may be permitted when the
intervenor has an economic interest in the outcome of the suit.” Meyer v. Meyer, 842
S.W.2d 184, 188 (Mo. App. 1992) (internal quotations omitted); see also Matter of
11
Additional Magistrates for St. Louis Cnty., 580 S.W.2d 288, 295 n.6 (Mo. banc 1979)
(noting that a party properly could have been permitted to intervene where its economic
interests were at issue).
This Court must confine its review of permissive intervention under Rule 52.12(b)
to considering whether the trial court’s ruling was an abuse of discretion because it was
“clearly against the logic of the circumstances then before the court and is so arbitrary
and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.” State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 131 (Mo. banc
2000).
Plaintiffs contend that the trial court abused its discretion in granting the
intervenors permissive intervention under Rule 52.12(b) because the intervenors failed to
show that their status as taxpayers was sufficient to justify their being allowed to
duplicate Defendants’ defense of the case. The intervenors, however, convinced the trial
court that they had unique interests at stake in this case that went beyond their interests as
taxpayers. The trial court’s findings highlighted the intervenors’ personal and economic
interests related to their planned reelection efforts, including interests in preventing delay
and uncertainty and in avoiding unnecessary expenditures of time and resources.
Based on the facts of this case, this Court is not persuaded that the trial court
abused its discretion in permitting intervention under Rule 52.12(b).
Sunshine Law
Plaintiffs claim that the trial court erred in finding that the nonpartisan
reapportionment commission did not violate the provisions of Missouri’s open meetings
12
and records law in chapter 610, RSMo, known generally as the “sunshine law.” They
contend that the nonpartisan reapportionment commission is a “public governmental
body” that must act in accordance with the sunshine law and that it failed to do so when it
held three closed meetings without providing public notice, failed to hold a public vote to
close the meetings, and failed to take minutes or journal entries to document the
meetings. Plaintiffs assert that, as a consequence of the nonpartisan reapportionment
commission’s failure to comply with the sunshine law, the plan is invalid and cannot be
used by the secretary of state.
Assuming, solely for the purposes of this opinion, that the statutory provisions of
the sunshine law were to govern judicial institutions, the express language of the sunshine
law makes its provisions inapplicable to the meetings held by the nonpartisan
reapportionment commission. Section 610.010 5 defines a “public governmental body” as
“any legislative, administrative or governmental entity created by the constitution or
statutes of this state, by order or ordinance of any political subdivision or district, judicial
entities when operating in an administrative capacity, or by executive order[.]”
(emphasis added). Under Mo. Const. art. III, sec. 2 and art. V, sec. 4, the nonpartisan
reapportionment commission consists entirely of judges from the court of appeals.
Because it is comprised solely of members of the judicial branch, the nonpartisan
5
Unless indicated otherwise, all statutory references are to RSMo Supp. 2010.
13
reapportionment commission is a “judicial entity,” and the provisions of the sunshine law
only apply if it is “operating in an administrative capacity.” Section 610.010.
The nonpartisan reapportionment commission did not operate in an administrative
capacity, however, when it held the three closed meetings at issue. The nonpartisan
reapportionment commission was responsible for reapportioning the House districts
according to Mo. Const. art. III, sec. 2, which is a legislative function despite being
performed by a judicial entity. See State ex rel. Teichman v. Carnahan, 357 S.W.3d 601,
605 (Mo. banc 2012). Meetings held by the nonpartisan reapportionment commission
were in furtherance of that responsibility and resulted in a plan that had the force and
effect of a statute. See Barrett, 146 S.W. at 56. The meeting was not held in an
administrative capacity for the administration of the courts. See Sup. Ct. Operating Rule
2.03(a) (administrative records are open to the public, defined as “all records, including
reports and correspondence, pertaining to the administration of the courts.”).
As a
consequence, actions by the nonpartisan reapportionment commission explicitly were
exempted from the provisions of the sunshine law. The trial court did not err in refusing
to invalidate the plan based on the sunshine law.
Validity of the Plan under the Missouri Constitution
Plaintiffs’ primary substantive challenges to the plan filed by the nonpartisan
reapportionment commission are that it violates art. III, sec. 2 of the Missouri
Constitution because the districts are not sufficiently equal in population, compact, or
contiguous. Plaintiffs specifically claim that the trial court erred in: (1) applying an
incorrect standard when it found that Plaintiffs failed to prove the plan was not as nearly
14
equal in population as possible, in that the trial court considered the federal requirement
of a total deviation range of 10.00 percent in legislative redistricting plans, district
compactness, political subdivision lines, and the federal voting rights act when
determining the possible population equality in each district; (2) applying an incorrect
standard to find that Plaintiffs failed to prove that the districts are not contiguous under
Mo. Const. art. III, sec. 2 when various districts are divided by a major river without a
connecting bridge; (3) incorrectly applying a standard based on a lack of motive to
gerrymander and a lack of compactness in other maps to find that Plaintiffs failed to
prove that the districts are not as compact as may be because compactness should be
sacrificed only to achieve population equality; and (4) declaring that the plan does not
violate Mo. Const. art. I, secs. 2 and 25 when the impact of Plaintiffs’ vote is affected by
the lack of contiguousness, compactness, and population equality among the districts.
Constitutional challenges to the plan filed by the nonpartisan reapportionment
commission present a justiciable claim for which this Court has jurisdiction. “‘It is well
settled that courts have jurisdiction and authority to pass upon the validity of legislative
acts apportioning the state into senatorial or other election districts and declare them
invalid for failure to observe nondiscretionary limitations imposed by the Constitution.’”
Teichman, 357 S.W.3d at 606 (quoting Preisler v. Hearnes, 362 S.W.2d 552, 555 (Mo.
banc 1962)).
This Court, therefore, properly considers the merits of Plaintiffs’
constitutional challenge to the plan.
The enactment of Mo. Const. art. III, sec. 2 was a direct result of a successful
equal protection challenge to the previous constitutional provisions relating to legislative
15
reapportionment. Prior to 1966, the constitution apportioned the Missouri House of
Representatives by requiring that each county in the state have at least one representative.
See Mo. Const. art. IV, sec. 2 (1959).
In 1964, the United States Supreme Court, in Reynolds v. Sims, held that “the
Equal Protection Clause requires both houses of a state legislature to be apportioned on a
population basis.” 377 U.S. 533, 576 (1964). Later that year, in Jonas v. Hearnes, four
Missouri citizens and voters brought an action in federal court claiming that the
reapportionment standards for House of Representative districts in Mo. Const. art. III,
secs. 2 and 3 (1959) and Senate districts in Mo. Const. art. III, secs. 5 and 7 were
unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. 236
F.Supp. 699, 701 (W.D. Mo. 1964). The United States District Court for the Western
District held that the reapportionment of the House and Senate districts was not in
accordance with “constitutionally permissible standards as laid down in Reynolds v. Sims,
supra, and with the guarantees of equal protection of law insured by the Fourteenth
Amendment.” Id. at 704, 708. Instead of invalidating the provisions as unconstitutional,
the court reserved jurisdiction and permitted the General Assembly to “promptly devise
and pass legislation creating and establishing a system of legislative districting and
apportionment of the House of Representatives and the Senate thereof, in accordance
with federal constitutional standards . . . .” Id. at 709.
In response to the Jonas decision, the General Assembly submitted to the people
proposed amendments to the provisions relating to reapportionment of the House and
Senate districts. In January 1966, the people amended the constitution by adopting the
16
provisions in Mo. Const. art. III, secs. 2, 5, and 7. The provisions adopted in 1966 for the
reapportionment of districts for the House of Representatives in art. III, sec. 2 require that
the districts be, equal in population as nearly as possible, contiguous, and as compact as
may be. In pertinent part, the provision states:
The commission shall reapportion the representatives by dividing the
population of the state by the number one hundred sixty-three and shall
establish each district so that the population of that district shall, as nearly
as possible, equal that figure.
Each district shall be composed of contiguous territory as compact as may
be.
Mo. Const. art. III, sec. 2. The standards adopted in 1966 for the reapportionment of
Senate districts are enumerated in art. III, secs. 5 and 7. 6
These requirements in the constitution for drawing a reapportionment map are
mandatory and objective, although the language used in the requirements themselves
creates a level of flexibility in their compliance. See Pearson I, 359 S.W.3d at 40.
Specifically, the plan reapportioning House districts must: (1) have population equality
6
Art. III, sec. 5 establishes 34 senatorial districts and provides that “the state shall be
divided into convenient districts of contiguous territory, as compact and nearly equal in
population as may be.” Art. III, sec. 7 also addresses the population standard for
senatorial districts. It reads:
The commission shall reapportion the senatorial districts by dividing the
population of the state by the number thirty-four and shall establish each
district so that the population of that district shall, as nearly as possible,
equal that figure; no county lines shall be crossed except [as necessary to
add population and must then] be as nearly equal as practicable in
population.
Mo. Const. art. III, sec. 7.
17
“as nearly as possible”; (2) have contiguous territory; and (3) be as compact “as may be.”
Mo. Const. art. III, sec. 2. Although adopted in response to equal protection concerns,
these three requirements also work together to guard against the evil of gerrymandering.
See Pearson I, 359 S.W.3d at 38 (quoting Barrett, 146 S.W. at 61).
Under these requirements, the starting point for drawing a valid map is the
requirement that the district must be contiguous because the standard for this requirement
is absolute. The language that each district “shall be composed of contiguous territory” is
free of any phrase that could broaden the meaning of “contiguous.” In contrast, the
standards for the requirements of population equality and compactness are not absolute.
For population equality, the reapportionment commission must divide the state
population by 163 and make each district, “as nearly as possible, equal that figure.”
Under this standard, the ability to attain population equality is dependent upon that which
is “possible.” Similarly, the requirement that the map be “as compact as may be” allows
some flexibility, although, as noted above, satisfaction of the requirement itself is
mandatory.
The compactness standard, unlike the one for contiguity, requires
consideration of other factors, necessarily including the boundary lines of neighboring
districts from the one in question. 7
The standards for compactness and population equality also are inherently
interrelated. It is impossible to consider whether the map is as compact “as may be”
7
Although the standard for compactness is contextual, the determination of the
constitutional validity of the map under Mo. Const. art. III, sec. 2 remains focused on
whether each constitutional requirement is met for each district. See Pearson I, 359
S.W.3d at 39.
18
without also considering whether the population is “as nearly as possible, equal.” One
determination cannot be made without consideration of the other.
This Court
summarized the interrelationship between the standards in Pearson I:
[T]he provision requiring compactness of territory, subject, as it may be, to
other more definitely expressed rules, may also, in application, be modified
by the requirement of equality in population . . . that ‘compactness, being of
less importance, may, to some extent, yield in aid of securing a nearer
approach to equality of representation.
Id. (quoting State ex rel. Barrett, 146 S.W. at 61 (internal citations omitted)). By virtue
of this interrelatedness, it is more important to attain population equality in each district
than compactness. Id.
Because multiple district configurations can meet the constitutional requirements,
there is no perfect map. See id. at 39. If that were required by the constitutional
standards, there would be no finality in the redistricting process.
Additionally, the
variation permitted under the “as nearly as possible, equal” and “as compact as may be”
standards shows that the constitution does not require absolute perfection in a map
because “compactness and numerical equality cannot be achieved with absolute
precision.” See id. The primary disagreement by the parties in this case, however, is the
amount of variation permitted by the “as nearly as possible” and the “compact as may be”
language in the standards.
Particularly, the parties disagree as to the meaning of the word “possible” within
the standard for population equality. Although Plaintiffs concede that the term “possible”
does not require perfect precision in population equality, they contend that a strict
definition should apply, such that the map should attain the highest degree of population
19
equality possible. Plaintiffs assert that this Court should require population deviations
similar to the near-zero-tolerance rule for congressional districts provided in Kirkpatrick
v. Preisler, in which the United States Supreme Court held that a deviation of less than 3
percent from the ideal population figure was invalid. 394 U.S. 526, 528-30 (1969).
Defendants and the intervenors assert the contrary, stating that the meaning of “possible”
should broadly allow for flexibility in the level of population equality based on
permissible factors. They contend that this Court should follow federal decisions finding
that population deviations of 10.00 percent or less are prima facie evidence of
constitutional validity for the reapportionment of state legislative districts. See generally
Voinovich v. Quilter, 507 U.S. 146, 161 (1993); Brown v. Thompson, 462 U.S. 835, 84243 (1983); White v. Regester, 412 U.S. 755, 764 (1973).
In ascertaining the meaning of the word “possible” in the standard for population
equality, the primary rule is to “give effect to the intent of the voters who adopted the
Amendment” by considering the plain and ordinary meaning of the word. Keller v.
Marion Cnty. Ambulance Dist., 820 S.W.2d 301, 302 (Mo. banc 1991); StopAquila.org v.
City of Peculiar, 208 S.W.3d 895, 902 (Mo. banc 2006). The plain and ordinary meaning
of a word used in a constitutional provision is the meaning that “the people commonly
understood the word[] to have when the provision was adopted.” Buechner v. Bond, 650
S.W.2d 611, 613 (Mo. banc 1983). If the voters’ intent cannot be ascertained from the
plain and ordinary meaning of the language due to “duplicity, indistinctness or
uncertainty of meaning of an expression,” it is ambiguous. See J. B. Vending Co. v. Dir.
of Revenue, 54 S.W.3d 183, 188 (Mo. banc 2001) (stating the definition of “ambiguous”).
20
The commonly understood meaning of a word can be found in the dictionary.
StopAquila.org, 208 S.W.3d at 902. If a word has more than one dictionary definition
that applies in the context of the provision, it is ambiguous. See Auto Owners (Mut.) Ins.
Co. v. Sugar Creek Mem’l Post No. 3976, 123 S.W.3d 183, 188 (Mo. App. 2003).
Considering the dictionary definition of the disputed term in this case, the word
“possible” has a variety of potential meanings. The relevant definitions of “possible” in
the dictionary are:
1 [a]: falling or lying within the powers (as of performance, attainment, or
conception) of an agent or activity express or implied: being within or up to
the limits of one’s ability or capacity as determined by nature, authority,
circumstances, or other controlling factors [b]: falling within the bounds of
what may be done, occur, be conceived, or be attained within the
framework of nature, custom, or manners [c]: being such to the utmost
degree[.] 2: Able[.] 3 [a]: that may or may not occur: that may chance:
dependent on contingency: neither probable nor impossible [b]: likely,
probable – usually used with an adverb expressing doubt 4: having an
indicated potential by nature or circumstances: able or fitted to become, be
used, or otherwise serve 5: capable of being surmounted, traversed, or dealt
with: neither unacceptable nor intolerable – often used with an adverb
expressing doubt[.]
Syn practicable, feasible: Possible is used to dispel doubt that something
may or does occur or exist or may come to exist[.] Practicable refers to
what may be readily effected, executed, practiced, used, or put into
operation[.] Feasible may designate what is likely to work out or be put
into effect successfully or what in a difficult situation seems the expedient
least liable to fail[.]
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1771 (1993) (internal notations
omitted). In light of these dictionary definitions, and in the context of art. III, sec. 2,
there are several definitions that could apply, so the plain and ordinary meaning of the
word “possible” is uncertain and the term is ambiguous. In the context of the population
standard, the meaning of “possible” could range from the narrow definition of “being
21
such to the utmost degree” to the broader definition of “falling within the bounds of what
may be done, occur, be conceived, or be attained within the framework of nature, custom,
or manners.” Id. To resolve such ambiguity, the rules applicable to the construction of
statutes are also applicable to the construction of constitutional provisions. Buechner,
650 S.W.2d at 613.
In considering which of the potential dictionary definitions should apply, the term
“possible,” in the context of the population standard, cannot mean population equality “to
the utmost degree” as urged by Plaintiffs.
Such a construction is precluded on
constitutional grounds. If a constitutional provision can be interpreted in different ways,
one constitutional and the other unconstitutional, the constitutional construction shall be
adopted. See Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 838-39 (Mo. banc
1991). Although art. III, sec. 2 is a provision in the Missouri Constitution, it nonetheless
must comply with the United States Constitution because of the Supremacy Clause. See
U.S. Const. art. VI, cl. 2. 8
Under the Supremacy Clause, state laws and constitutional provisions are
“preempted and have no effect” to the extent they conflict with federal laws. See State ex
rel. Proctor v. Messina, 320 S.W.3d 145, 148 (Mo. banc 2010). By operation of the
Supremacy Clause, the nonpartisan reapportionment commission must comply with the
8
The Supremacy Clause of the United States Constitution states that federal law “shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S.
Const. art. VI, cl. 2.
22
Equal Protection Clause of the United States Constitution and the Voting Rights Act in
determining what population equality is “possible.” The Equal Protection Clause of the
Fourteenth Amendment protects against racial gerrymandering in reapportioning districts.
See Shaw v. Reno, 509 U.S. 630, 641 (1993). Similarly, subsection 2(a) of the Voting
Rights Act of 1965 prohibits states from imposing any “voting qualification or
prerequisite to voting or standard, practice, or procedure . . . which results in a denial or
abridgement of the right of any citizen of the United States to vote on account of race or
color.” 42 U.S.C. section 1973(a). A valid map must comply with the Voting Rights
Act. See U.S. Const. art. VI, cl. 2. Interpreting “possible” to mean strictly “to the utmost
degree” in population equality would exclude consideration of these additional factors,
including the factors mandated by the Supremacy Clause. Therefore, “possible” must be
construed broadly enough to permit consideration of additional factors by a
reapportionment commission. See Blaske, 821 S.W.2d at 838-39.
Although constitutional considerations preclude a narrow construction, the context
of the word “possible” in the phrase “as nearly as possible” also precludes an overly
broad meaning. The phrase “as nearly as,” modifying “possible,” is not given effect
under the broadest dictionary definition, which would require population equality only
“within the bounds of what may be done, occur, be conceived, or be attained within the
framework of nature, custom, or manners.” See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1771 (1993).
Instead, a dictionary definition falling between the two
extremes is more reflective of the standard necessary to meet constitutional requirements
and intended by the phrase “as nearly as possible.” The definition of “being within or up
23
to the limits of one’s ability or capacity as determined by nature, authority,
circumstances, or other controlling factors,” id., permits compliance with the mandatory
requirements of federal law and is consistent with use of “possible” as a synonym for
“practicable” in the dictionary definition set out above.
In this regard, in determining the meaning of “possible” for the reapportionment of
House districts, this Court also considers the identical language used for the
reapportionment of Senate districts.
Mo. Const. art. III, sec. 7 says the commission
“shall establish each district so that the population of that district shall, as nearly as
possible, equal that figure” yet also says that, where county lines must be crossed in the
case of a multi-district county, the resulting cross-county district must be “as nearly
equal as practicable in population.” (emphasis added). Mo. Const. art. III, sec. 5,
similarly to its House counterpart, says that “the state shall be divided into convenient
districts of contiguous territory, as compact and nearly equal in population as may be.”
The use of all three terms “practicable,” “possible” and “as may be” in sections 5 and 7 of
article III in referring to the population requirement for Senate districts, along with the
fact that “practicable” is a synonym of “possible,” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1771 (1993), both reinforce the conclusion that the term
‘possible” is not used in the strict sense of equal to the absolute degree.
This intermediate definition of “possible” is consistent with this Court’s precedent
recognizing that other factors are inherently included within the constitutional standards
governing the reapportionment process, although not expressly articulated as a separate
requirement in the constitution. These factors were identified by this Court in Preisler v.
24
Doherty, 284 S.W.2d 427 (1955), Hearnes, 362 S.W.2d 552, and Preisler v. Kirkpatrick,
528 S.W.2d 422, 426 (Mo. 1975). In Doherty, this Court distinguished the process of
city officers dividing St. Louis into districts from the process of redistricting the state
because “it is obvious that it is much easier for them to make compact districts than for a
legislature or commission restricted to county lines (or following town, ward or other
district lines) . . . .” 284 S.W.2d at 432. In Hearnes, a case challenging congressional
districts, this Court stated that
[C]ounties are important governmental units, in which the people are
accustomed to working together. Therefore, it has always been the policy
of this state, in creating districts of more than one county (congressional,
judicial or senatorial) to have them composed of entire counties. . . . We
must hold that it was proper for the legislature to follow this policy. In fact,
to do otherwise would lead to the most vicious kind of gerrymander. The
only departure therefrom in the 1961 Act was in our two largest cities, St.
Louis and Kansas City. . . . Urban conditions may justify this treatment.
362 S.W.2d at 556-57. The Court also stated that “it is not improper to consider the
precedents of allocation of counties to existing districts in deciding the composition of
new enlarged districts.” Id. at 557.
Later, this Court in Preisler v. Kirkpatrick cited the United States Supreme Court
in Reynolds, 377 U.S. 533, to recognize that “districting, without any regard for political
subdivision or natural or historical boundary lines, may be little more than an open
invitation to partisan gerrymandering.” 528 S.W.2d at 425 (internal quotations omitted).
This Court also recognized that population density may affect boundary lines, stating that
“population density of the state is, of course, uneven and any effort to accomplish both
the overriding objective of [population equality] and the preservation of county lines
25
reasonably may be expected to result in the establishment of districts that are not
esthetically pleasing models of geometric compactness.” Id. at 426.
As provided in these cases, the language used in the constitutional requirements
implicitly permits consideration in the redistricting process of population density; natural
boundary lines; the boundaries of political subdivisions, including counties 9
municipalities, and precincts; and the historical boundary lines of prior redistricting
maps. 10
This Court recently affirmed the continued propriety of recognized,
unenumerated factors in Pearson I. See 359 S.W.3d at 40 (recognizing the importance of
preservation of “the integrity of the existing lines of our various political subdivisions.”
despite not expressly stated as a separate consideration in the constitution). 11
9
Although this Court’s prior opinions, including Pearson I, recognize that county lines
validly may be considered in reapportioning congressional and house districts, the
Missouri Constitution makes it a mandatory factor in the reapportionment of senate
districts. See Mo. Const. art. III, secs. 5 and 7.
10
The concurring opinion criticizes this Court’s redistricting precedent because it fails to
provide a “definitive list of factors” that are permissible. A definitive list of factors is
found in this Court’s precedent, which this opinion describes and lists. The concurring
opinion also asserts that this opinion is adopting all of the factors recognized by the
United States Supreme Court despite express language that some factors listed are not
recognized by this Court. Nothing in this opinion should be construed as expanding the
list of factors beyond those recognized in this Court’s precedent. As a whole, these
recognized factors provide guidance in the redistricting process and protect Missourians
from the risk of arbitrary decisions.
11
The concurrence asserts that this Court’s opinion “overrules three holdings central to
Pearson I.” This assertion seeks to expand the holding of Pearson I. Pearson I held that
the trial court erred in granting a motion to dismiss because there was a “question of fact,
yet to be tried, whether those districts are “as compact and nearly equal in population as
may be.” 359 S.W.3d at 40. In doing so, it recognized that the constitutional
requirements are mandatory and objective for each district, overruling Kirkpatrick,
Doherty, and Hearnes to the extent that they used the subjective “wholly disregard” and
“good faith effort” standards and failed to require that each district comply with the
constitutional standards. See Pearson I, 359 S.W.3d at 39 (referring to the “Preisler
26
Interpreting the language “as may be” and “as possible” as allowing for
consideration of other recognized factors is consistent with the United States Supreme
Court’s requirement for congressional districts to have population equality “as nearly as
is practicable” under its interpretation of the Equal Protection Clause in the United States
Constitution. See Reynolds v. Sims, 377 U.S. 533, 577 (1964). The federal standard
permits “minor variations which ‘are based on legitimate considerations incident to the
effectuation of a rational state policy.’” Swann v. Adams, 385 U.S. 440, 444 (1967). 12
As with this Court, the United States Supreme Court recognizes that legitimate
considerations include recognition of natural boundary lines, recognition of historical
district boundary lines, and respect for boundaries of political subdivisions. 13 See id.;
cases.”). Beyond the application of the good faith and wholly disregard standards and
consideration of the validity of a map as a whole, Kirkpatrick, Doherty, and Hearnes
remain good law, and both Pearson I and State ex rel. Teichman cite them as such. See
id. at 39; State ex rel. Teichman, 357 S.W.3d 601, 606 (Mo. banc 2012). This opinion is
consistent with Pearson I in every respect.
12
The concurrence misconstrues the application of the principle that permits “minor
variations which ‘are based on legitimate considerations’” when it cites it as support for
the proposition that recognized reapportionment factors cannot be used to justify
deviations as part of the constitutional standards. The Supreme Court explicitly stated in
Reynolds v. Sims that “[s]o long as divergences from a strict population standard are
based on legitimate considerations incident to the effectuation of a rational state policy,
some deviations from the equal-population principle are constitutionally permissible[.]”
377 U.S. 533, 579 (1964). Thus, contrary to proposition stated by the concurrence, the
United States Supreme Court in fact allows for “deviations from the equal-population
principle” based on recognized factors. See id. This interpretation of “as nearly as is
practicable” is analogous to this Court’s interpretation of “as possible” and “as may be.”
13
In Kirkpatrick v. Preisler, the Supreme Court recognized an exception to the
consideration of county or municipal boundaries in a challenge to the population equality
of congressional districts under the United States Constitution, stating that it is improper
to justify deviations based on political subdivision boundaries. 394 U.S. 526, 533-34
(1969). Since Kirkpatrick v. Preisler, however, the Supreme Court expressly identifies
respect for municipal and county boundaries as legitimate considerations in congressional
27
Karcher v. Daggett, 462 U.S. 725, 740 (1983).14 The Supreme Court also identifies other
factors that may justify variances, which this Court does not recognize, such as
maintaining communities of interest and avoiding contests between incumbents. See
Karcher, 462 U.S. at 740. Similar to the United States Supreme Court’s interpretation of
the “as nearly as is practicable” standard under the Equal Protection Clause, this Court
interprets the requirements in the Missouri Constitution to implicitly permit the
legislature to comply with federal laws and consider recognized factors yet still comply
with the requirements of the Missouri Constitution. The requirements for population
equality “as nearly as possible” and compactness “as may be” allows for consideration of
these recognized factors. See Pearson I, 359 S.W.3d at 39.
The concurring opinion both misinterprets the law and seeks to overrule portions
of this Court’s precedent which, for the last century, has defined the language used in the
Missouri Constitution to include consideration of these factors, despite not being
expressly stated. See id. (counties as important governmental units); Kirkpatrick, 528
S.W.2d at 426 (political subdivisions, historical boundary lines, and population density);
redistricting. See Abrams v. Johnson, 521 U.S. 74, 98 (1997) (citing Karcher v. Daggett,
462 U.S. 725, 740 (1983)); see also Bush v. Vera, 517 U.S. 952, 963 (1996).
14
The Supreme Court has also stated that certain factors cannot be considered when
seeking to attain population equality under the United States Constitution. In Reynolds v.
Sims, the Supreme Court detailed that “history alone [referring to history as the historical
number of districts as a basis for representation, not the location of historical boundary
lines as later identified in Swann], nor economic or other sorts of group interests, are
permissible factors in attempting to justify variances from population-based
representation. . . . Considerations of area alone provide an insufficient justification for
deviations from the equal-population principle.” 377 U.S. 533, 580 (1964).
28
Hearnes, 362 S.W.2d at 556-57 (counties as important governmental units); and Doherty,
284 S.W.2d at 432 (county, town, ward or other district lines). These cases do not hold
that constitutional requirements can be disregarded to consider other factors but, instead,
recognize that the constitutional requirements themselves incorporate such considerations
by use of the standards “as may be,” and “as possible.” As part of the standards for the
constitutional requirements, federal law and the previously recognized factors are in fact
of constitutional significance, and this Court recognizes that in its precedent.
Plaintiffs’ burden of proving that the current plan is unconstitutional, therefore,
must account for the additional factors that the reapportionment commission must
consider and those that it is permitted to consider. For the contiguousness requirement, it
is an absolute standard that either is satisfied or not satisfied by the challenged map. The
population equality and compactness requirements, on the other hand, have interrelated
standards that are impacted by the existence of other possibilities.
For these
requirements, proof that the standards for population equality and compactness are not
met requires the party challenging the map to present evidence that greater population
equality and compactness are feasible in that the plan deviates from those principles. But
showing the ability to attain greater mathematical precision is not enough. The plaintiff
also must prove that any minimal and practical deviation from population equality or
compactness in a district does not result from application of recognized factors that may
have been important considerations in the challenged map.
In this regard, the issue of whether the constitutional requirements are satisfied is
determined objectively, requiring no proof of the subjective intent of the reapportionment
29
commission. See Pearson I, 359 S.W.3d at 40. To meet the objective standard, a
plaintiff must present evidence that greater population equality and compactness is
feasible in one or more districts. But that is not all. The plaintiff must also show that
federal laws or other recognized factors did not affect the district boundary.
This
showing is not burdensome on the plaintiff: the plaintiff needs only to submit maps or
other evidence that objectively shows that county lines, political subdivisions, or
historical boundary lines were not a basis for the district boundary or that it goes beyond
a “minimal and practical deviation[.]” See id. at 40. So long as the evidence persuades
the trial court that the challenged map “clearly and undoubtedly contravenes the
constitution,” the plaintiff will prevail. See Barton Cnty., 311 S.W.3d at 740-41.
In this case, Plaintiffs must satisfy this burden to prove that the plan is
unconstitutional. Because the plan is unconstitutional if it fails to meet any of the
requirements enumerated in art. III, sec 2, this Court first addresses Plaintiffs’ showing
for the absolute requirement of contiguity, followed by the interrelated requirements of
population equality and compactness.
Plaintiffs claim that six districts in the map of the nonpartisan reapportionment
commission are not contiguous because rivers make a portion of each district inaccessible
so that it can only be reached by traveling through one or more other districts. Under art.
III, sec. 2, the House districts “shall be composed of contiguous territory[.]” The plain
and ordinary meaning of “contiguous” is provided by the dictionary definition of
“touching or connected throughout.”
WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 492 (1993). In addition, the dictionary definition of “territory” references a
30
geographic area without regard to whether the portions of the land within the geographic
area are split by large rivers or other bodies of water. Id. at 2361. The constitutional
requirement of contiguous territory does not depend on the particular geographical
characteristics of the territory circumscribed within a district. As a result, a district is
composed of contiguous territory when the territory within the district is touching or
connecting throughout the entire district. See id. at 492.
This Court ruled consistently when construing the term “contiguous” in the
context of a municipal annexation. In State ex rel. Kansas City v. North Kansas City, this
Court held that the contiguity of a proposed annexation area was not broken by the
Missouri River where the city limit was the center of a river that constituted the boundary
line of two counties. 228 S.W.2d 762, 773 (Mo. banc 1950), abrogated on other grounds
by State ex inf. Hannah v. City of St. Charles, 676 S.W.2d 508, 512 (Mo. banc 1984)
(finding that the enactment of a charter statute makes prior caselaw discussing charter
amendments obsolete). 15
Similarly, the Supreme Court of Florida rejected an argument nearly identical to
Plaintiffs’ under a similar requirement that legislative districts be contiguous in In re
Constitutionality of House Joint Resolution 1987, 817 So.2d 819 (Fl. 2002). See Fla.
Const. art. III, section 16. There, a district boundary crossed a large lake to include a
15
In its decision, this Court noted that two bridges crossed the Missouri River. State ex
rel. Kansas City, 228 S.W.2d at 767. However, the existence of a method of land travel
within the proposed annexation area was part of the basis for finding that the annexation
was reasonable, not the basis for finding that the area was contiguous. Id.
31
population center in one county with a population center in another county, without
including any connecting territory on the lakeshore. Id. at 828. The court found that the
district complied with the contiguity requirement under the state constitution. Id. The
court reasoned that the contiguity requirement does not mean that a paved, dry road must
connect all parts of a district, nor does it require convenience and ease of travel or travel
by terrestrial rather than marine forms of transportation. Id.
The separation of one part of a district from another part of a district by a large
river does not violate Missouri’s constitutional requirement that the district be composed
of contiguous territory. The map filed by the commission satisfies the constitutional
requirement of contiguity.
For the population equality and compactness requirements, Plaintiffs have failed
to meet their burden of proof in challenging the constitutional validity of the plan. The
evidence submitted by Plaintiffs consists of the parties’ joint stipulation of facts and the
affidavit of Mr. Girouard with supporting exhibits. As part of the affidavit, Mr. Girouard
included a proposed map with greater population equality, which Plaintiffs also contend
meets the compactness requirement.
Plaintiffs’ proposed map and other evidence,
however, fails to prove that the nonpartisan reapportionment commission’s map is
unconstitutional, because the creator of the proposed alternative map, Mr. Girouard, did
not take into consideration federal law and other recognized factors when drawing the
proposed map.
Mr. Girouard used only three criteria in creating his proposed map.
affidavit, Mr. Girouard specifically stated that:
32
In his
The instructions I was given to prepare [the proposed map] were to create a
map with (a) the smallest possible population deviation range, (b) every
district comprised of contiguous territory, and (3) and [sic] each district as
compact as possible given the prior two criteria. Using my expertise with
Maptitude, and influenced by these criteria and no others, Exhibit F is the
best I could do.
(Emphasis added).
In contrast, the plan filed by the nonpartisan reapportionment
commission indicates that it considered numerous factors in creating its map. The plan
consisted of approximately 1,270 pages of supporting documents and maps, including
data about and statistical analysis of Missouri’s population figures, voting age
topography, racial demographics, and other factors.
The population figures were
provided by the census bureau in the form of “Voter Tabulation Districts,” comprised of
blocks, block groups, census tracts, and counties, which limit the ability to attain precise
population figures when drawing boundary lines.
Each of these considerations, as
evidenced by the 1,270 page plan filed with the secretary of state, impacts the ability of
the nonpartisan reapportionment commission to “as nearly as possible, equal” the ideal
population figure.
None of Plaintiffs’ evidence, however, addresses these additional factors. First,
Plaintiffs’ evidence fails to address whether the higher population equality and
compactness as shown by the proposed map is possible when considering the other
recognized factors. Plaintiffs failed to utilize the 1,270 pages of supporting documents
and maps filed with the commission’s plan, for example, to show whether the boundary
lines in the commission’s map were drawn to maintain boundaries of counties, cities, or
other political subdivisions. See Pearson I, 359 S.W.3d at 40. Nor did Plaintiffs use
33
prior-existing maps to show whether natural boundaries in the territory or historical
boundary lines were a consideration. See Kirkpatrick, 528 S.W.2d at 426. Plaintiffs
failed to utilize any such evidence or other analysis.
Second, Plaintiffs’ evidence does not include any data or analysis showing that it
complies with federal law requirements, most notably the Voting Rights Act. In fact, Mr.
Girouard’s affidavit expressly states that he considered “no other” factors in creating his
proposed map. While the joint stipulation of facts provides that there was no intent to
disfavor any citizens in a suspect class, that stipulation only addresses the map filed by
the
nonpartisan
reapportionment
commission,
not
Plaintiffs’
proposed
map.
Consequently, the record supports the trial court’s finding that Plaintiffs failed to prove
that it is possible to achieve greater population equality and compactness when
considering federal law requirements and other factors. Because Plaintiffs’ claim that the
plan violates Mo. Const. art. I, secs. 2 and 25 is based on an alleged failure to meet the
requirements in art. III, sec. 2, Plaintiffs also have failed to prove clearly and undoubtedly
that the plan is unconstitutional on that ground.
Conclusion
Because the intervenors had unique personal and economic interests at stake, the
trial court also did not abuse its discretion in allowing permissive intervention. The trial
court did not err in upholding the map under the sunshine law, because the nonpartisan
reapportionment commission is a judicial entity that was not acting in an administrative
capacity. Finally, Plaintiffs have failed to meet their burden of proving that the plan filed
by the nonpartisan reapportionment commission is clearly and undoubtedly
34
unconstitutional under Mo. Const. art. III, sec. 2 or Mo. Const. art. I, sec 25. The
judgment of the trial court is affirmed.
_________________________________
PATRICIA BRECKENRIDGE, JUDGE
Teitelman, C.J., Fischer and Draper, JJ.,
concur; Price, J., concurs in separate opinion
filed; Russell and Stith, JJ., concur in opinion
of Price, J.
35
SUPREME COURT OF MISSOURI
en banc
BOB JOHNSON, et al.,
Appellants,
v.
STATE OF MISSOURI, et al.,
Respondents.
)
)
)
)
)
)
)
)
)
No. SC92351
CONCURRING OPINION
“There is no discretion to violate mandatory provisions of the [c]onstitution ....”
Preisler v. Doherty, 284 S.W.2d 427, 435 (Mo. banc 1955). Legislative bodies are in the
business of making policy, and as such, when they enact statutes, they have discretion to
consider any and all factors they see as relevant—provided that they do not violate the
constitution. I am unable to fully join the principal opinion because it fails to recognize
that the Missouri Constitution’s mandatory requirements limit the discretion of legislative
bodies that draw the state’s electoral districts.
I concur in the principal opinion’s holdings as to the sunshine law and
intervention. I also concur in the principal opinion’s finding that Plaintiffs failed to prove
that the nonpartisan reapportionment commission’s plan violates the Missouri
Constitution. Plaintiffs presented no evidence that the plan was not drawn to comply with
the Voting Rights Act—a mandatory requirement. This finding alone is a sufficient
ground for affirming the trial court’s judgment. Once the principal opinion noted that
Plaintiffs failed to meet that burden, the opinion could and should have ended.
The principal opinion goes on, however, engaging in unnecessary and dangerous
dicta in violation of the doctrine that “we refuse to rule upon constitutional issues unless
they are necessary for the decision of the case.” State v. Vienup, 147 S.W.2d 627, 631
(Mo. 1941). See also State ex rel. State Bd. of Mediation v. Pigg, 244 S.W.2d 75, 79 (Mo.
banc 1951) (accord). In the process, the principal opinion dilutes—if not eviscerates—
constitutional requirements safeguarding Missourians’ voting rights from
gerrymandering.
Article III, section 2 of the Missouri Constitution mandates that each house district
be drawn in accordance with three requirements: contiguous territory; population as
nearly equal as possible; and districts as compact as may be. The Supremacy Clause, U.S.
Const. art VI, cl. 2, requires compliance with federal law, including the Voting Rights
Act.
The principal opinion states that the qualifiers “as possible” and “as may be”
broaden the definitions of “compact” and “equal population.” Thus, noncompact or
unequally populated districts become “compact as may be” or “equal as possible” when
the noncompactness or inequality is motivated by one of several nonconstitutional
factors, including natural and historic boundaries, population density, and other
2
discretionary concerns. 1 But nowhere in the language of our constitution are natural or
historic boundaries, population density or any other factors accorded imperative
significance, such that they might be weighed against constitutional and federally
mandated requirements designed to assure voters’ rights to fair electoral districts. While
legislative bodies are permitted to consider these nonconstitutional discretionary factors,
their discretion always is limited by mandatory constitutional requirements. There is no
discretion to violate mandatory provisions of the constitution.
I
The principal opinion’s approach overrules the three holdings central to Pearson v.
Koster, 359 S.W.3d 35 (Mo. banc 2012) (Pearson I). In Pearson I, this Court stressed
the importance of the mandatory language of the Constitution: “[T]he applicable
standard of review for a court in reviewing an article III, section 45 claim is the language
of the constitution itself: whether the General Assembly divided Missouri into districts of
‘contiguous territory as compact and as nearly equal in population as may be.’” Id. at 40
(quoting Mo. Const. art. III, sec. 45 ) (emphasis added). In Pearson I, the Court noted
that the “as may be” language recognizes that “compactness and numerical equality
cannot be achieved with absolute precision.” Id. at 39. This is because compactness is
“subject, as it must be, to other more definitely expressed rules.” Id. at 38 (quoting State
ex rel. Barrett v. Hitchcock, 146 S.W. 40, 61 (Mo. banc 1912)) (emphasis added). One
such “more definitely expressed rule” is equality in population. See Barrett, 146 S.W. at
1
It is unclear, under the principal opinion, exactly what factors may excuse
noncompactness or population equality, or even whether the list of factors is definite or
indefinite. See infra pp. 10–12.
3
61 (“[C]ompactness, being of less importance, may, to some extent, yield in aid of
securing a nearer approach to equality of representation.”). The others are contiguity,
which is unqualified and, thus, an “absolute” requirement, and federal laws, including the
Voting Rights Act. See Principal Opinion at *18–19, 23.
Pearson I recognized that in creating redistricting maps, the legislature may take
into account “a number of sensitive considerations.” Pearson I, 359 S.W.3d at 39.
Pearson I acknowledged that while the legislature could use their discretion to draw
redistricting maps, the maps must comply with mandatory constitutional requirements. Id.
Pearson I never stated that nonconstitutional factors such as “natural or historical
boundaries” or other discretionary considerations could transform a map that is
noncompact into one that is “compact as may be” and, therefore, constitutionally
permissible. Quite the opposite: Pearson I reaffirmed that the purpose of the written
compactness, contiguity, and equal population requirements “is ‘to guard, as far as
practicable, under the system of representation adopted, against a legislative evil,
commonly known as “gerrymander” ....’” Id. at 38 (quoting Barrett, 146 S.W. at 61).
Pearson I made its intention clear in the very next sentence: “The provision requiring
compactness of territory, subject as it must be, to other more definitely expressed rules,
may also, in application, be modified by the requirement of equality in population ....” Id.
at 38 (emphasis added) (quotation omitted).
The second holding in Pearson I asserted that the test for compliance is
“mandatory and objective, not subjective.” Id. at 40. In reaching this holding, Pearson I
departed from prior Missouri cases, including Preisler v. Kirkpatrick, 528 S.W.2d 422
4
(Mo. banc 1975) (Kirkpatrick II), which applied a subjective “honest and good faith”
standard. Pearson I, 359 S.W.3d at 39. Finally, Pearson I rejected Kirkpatrick II’s
evaluation of the redistricting plan as a whole to determine if it “substantially compl[ies]
with the compactness requirement” in favor of a district-by-district constitutional
evaluation. See id.
II
The principal opinion allows, as an excuse for failing to adhere to constitutional
requirements, the consideration of a number of factors never expressly written in the
constitution. The principal opinion also leaves open the possibility that still more factors
identified by the United States Supreme Court or courts of other states—in cases not
interpreting the language of the Missouri Constitution—might excuse noncompliance
with Missouri’s compactness requirement. This potentially limitless list of factors is
anything but a “definitely expressed rule” embodied in the language of the Missouri
Constitution.
By looking to nonconstitutional discretionary factors to determine whether a
district is as “nearly equal as possible” or “compact as may be,” the principal opinion
misconstrues the meaning of the constitution. When ascertaining the meaning of the
words “as nearly as possible” and “compact as may be,” the primary rule is to “give
effect to the intent of the voters” who approved the constitutional language. See Keller v.
Marion Cnty. Ambulance Dist., 820 S.W.2d 301, 302 (Mo. banc 1991). The constitution
grants the legislature the power to redistrict but places limits on the legislature’s
discretion:
5
[T]he Constitution, in express terms, limits the discretion by providing that
the [l]egislature shall apportion the state into districts; but in doing so it
shall make each district as nearly equal in population as may be .... The
words italicized show conclusively that it was not the intention of the
framers of the [c]onstitution to confer upon the [l]egislature the unlimited
power and discretion to form the districts in such shapes and dimensions as
it might, in its own opinion, deem proper, nor to give to each a population
which it deemed best. Had the framers of the [c]onstitution intended that
the [l]egislature should apportion the state into districts according to its
own free and untrammeled will, then they would not have used the words
of restriction before mentioned. This is too plain for argument.
Barrett, 146 S.W. at 54 (emphasis in original).
Politics and policy are subservient to the constitutional requirements of contiguity,
compactness, and equal population—not vice versa. See Doherty, 284 S.W.2d at 435
(“[C]onstitutional mandate[s] and standards cannot be broken down or rendered
inoperative on the theory of discretionary power.”) (quotation omitted). See also
Kirkpatrick v. Preisler, 394 U.S. 526, 533–34 (1969) (Kirkpatrick I) (“Missouri contends
that variances were necessary to avoid fragmenting areas with distinct economic and
social interests .... But to accept population variances, large or small, in order to create
districts with specific interest orientations is antithetical to the basic premise of the
constitutional command to provide equal representation for equal numbers of people.”).
This does not mean that the General Assembly or other redistricting authority is
not permitted to consider discretionary factors such as natural boundaries and historical
district boundary lines when drafting new maps. But because the text of the Missouri
Constitution neither requires consideration of these factors nor even mentions them, they
6
cannot excuse failure to comply with expressly stated constitutional requirements. 2
Allowing nonconstitutional discretionary factors to justify noncompliance with clearly
expressed constitutional mandates that check legislative discretion is a result so obviously
absurd and repugnant to the spirit of the constitutional instrument that it cannot be a
reasonable interpretation of the Missouri Constitution. There is no discretion to violate
expressly written mandatory provisions of the constitution. 3
III
The principal opinion mistakenly cites Pearson I for the proposition that factors
other than those expressly identified in the constitution may justify noncompactness.
Reaffirming the justiciability of challenges to redistricting maps, Pearson I stated only
that “[m]inimal and practical deviations” from perfect compactness or population
2
The principal opinion states that “the language used in the constitutional requirements
implicitly permits consideration in the redistricting process of” additional factors.
Principal Opinion at *26. Its choice of the word “implicitly” is an admission that the
constitution says nothing about these additional factors. The gist of the principal
opinion’s reasoning is that “implicitly permitted” (read: judicially created) factors can
override explicit requirements enacted by Missourians in their constitution.
3
Making matters worse, the principal opinion would allow those factors to be picked
after the fact. Rather than consistently applying a factor across the state when drawing a
map, presumably the court will pick and choose whichever factor might explain a
particular legislative aberration. Moreover, the sufficiency of the chosen factor will be
left entirely to the imagination of its selector. The system created by the principal opinion
is an invitation to arbitrary and capricious adjudication of redistricting maps. Cf. Board of
Educ. of City of St. Louis v. Missouri State Bd. of Educ., 271 S.W.3d 1, 11 (Mo. banc
2008) (“[An entity] acts unreasonably and arbitrarily if its decision is not based on
substantial evidence. Whether an action is arbitrary focuses on whether an [entity] had a
rational basis for its decision. Capriciousness concerns whether the [entity’s] action was
whimsical, impulsive, or unpredictable. To meet basic standards of due process and to
avoid being arbitrary, unreasonable, or capricious, an [entity’s] decision must be made
using some kind of objective data rather than mere surmise, guesswork, or ‘gut feeling.’
An [entity] must not act in a totally subjective manner without any guidelines or
criteria.”) (quotation omitted).
7
equality are permitted “if required to preserve the integrity of the existing lines of our
various political subdivisions.” Pearson I, 359 S.W.3d at 40. Far from promoting
nonconstitutional standards, Pearson I merely recognized existing political subdivisions
because the Missouri Constitution itself discusses county lines in state senate
redistricting. 4 To the extent that the City of St. Louis also functions as a county,
presumably that provision governs it as well. Nonetheless, Pearson I is very clear that it
is the “language of the constitution” that controls.
The principal opinion cites Kirkpatrick II, 528 S.W.2d at 426 (quoting Reynolds v.
Sims, 377 U.S. 533 (1964)), for the proposition that discretionary factors not written in
the constitution can transform a noncompact or unequally populated district into one that
is constitutionally permissible. See Principal Opinion at *25. Aside from the Reynolds
quote, the Court cites to no specific language in Kirkpatrick II for its assertion, because
no such language exists in that case or in any other Missouri precedent. In fact,
Kirkpatrick II itself found two districts to be noncompact. Kirkpatrick II, 528 S.W.2d at
426–27 (“[A]ll districts, except the sixth in St. Louis, and the 33rd because it thrusts a
narrow appendage from the middle of its body into the heart of Greene County, are
within acceptable limits of compactness.”). Although Kirkpatrick II upheld the plan, the
Court did not find those districts to be as “compact as may be.” Rather, the Kirkpatrick II
Court stated that because only two of thirty-four districts were noncompact, the plan as a
4
Article III, section 7 of the Missouri Constitution provides that “no county lines shall be
crossed except when necessary to add sufficient population to a multi-district county or
city to complete only one district which lies partly within such multi-district county or
city so as to be as nearly equal as practicable in population.”
8
whole “substantially compl[ied] with the compactness requirement,” id. at 427, and that
the reapportionment commission made an “honest and good faith effort to construct
senatorial districts as compact as may be,” id. at 426. 5
Moreover, the Reynolds quote cited by the principal opinion is itself taken out of
context. When affirming the right to equally populated voting districts, the Supreme
Court of the United States did state that “[i]ndiscriminate districting, without any regard
for political subdivision or natural or historical boundary lines, may be little more than an
open invitation to partisan gerrymandering.” Reynolds, 377 U.S. at 578–79. The court
continued, however: “So long as the divergences from a strict population standard are
based on legitimate considerations incident to the effectuation of a rational state policy,
some deviations from the equal-population principle are constitutionally permissible with
respect to the apportionment of seats in either or both of the two houses of a bicameral
state legislature. But neither history alone, nor economic or other sorts of group interests,
are permissible factors in attempting to justify disparities from population-based
representation.” Id. at 579–80 (emphasis added) (footnote omitted). Thus, Reynolds
actually supports Pearson I: the legislature may take nonconstitutional discretionary
factors into consideration when drafting a map, but if it drafts a noncompact map, those
nonconstitutional factors cannot transform the noncompact map into one as “compact as
may be.” Rather, only when compliance with mandatory federal law and other
enumerated requirements in Missouri’s Constitution—contiguity and equality in
5
As noted above, in Pearson I, this Court rejected the notion that a voter’s right to
compactness in one district could be overcome by compactness in other districts.
9
population—necessitates noncompactness may a noncompact district be considered
“compact as may be.” 6 More simply: noncompactness is allowed only when necessary to
enable compliance with Missouri’s contiguity, equal population, or county boundary
requirements or federal law. There is no discretion to violate mandatory provisions
expressly written in the constitution.
IV
It is telling that, despite its pages of dicta, the principal opinion never states a clear
standard or test for what plaintiffs must prove in a compactness or population equality
challenge. Instead, it discusses pieces of what sound like different tests throughout the
opinion. For example:
The plaintiff also must prove that one or more districts are not nearly as
equal in population as possible and not as compact as may be considering
the additional factors that may have been important considerations in the
challenged map.
In this regard, the issue of whether the constitutional requirements
are satisfied is determined objectively, requiring no proof of the subjective
intent of the reapportionment commission. See Pearson I, slip op. at 3. To
meet the objective standard, a plaintiff must present, at a minimum,
evidence demonstrating not only that the proposed alternative has greater
population equality and compactness, but also that it complies with federal
law.
Principal Opinion at *29-30 (emphasis added). Several pages later, the principal opinion
states:
Plaintiffs’ proposed map and other evidence, however, fail to prove that the
nonpartisan reapportionment commission’s map is unconstitutional,
because the creator of the proposed alternative map, Mr. Girouard, did not
take into consideration federal law and other recognized factors when
drawing the proposed map.
6
A similar analysis holds true for an unequally populated map.
10
Id. at 32 (emphasis added). At points, the principal opinion suggests that “natural
and historical boundaries” are among the factors plaintiffs are obligated to
consider, see id. at 26, 27, 34, as is “population density,” see id. at 26. Elsewhere,
it suggests the list of factors might include “preserving the cores of prior districts,
maintaining communities of interest, and avoiding contests between incumbents.”
Id. at 28. Finally, the principal opinion faults Plaintiffs for failing to “address” a
host of factors that the reapportionment commission “considered,” including “data
about and statistical analysis of Missouri’s population figures, voting age
topography, racial demographics,” and last, but not least, “other factors.” Id. at 33.
The principal opinion not only fails to provide a definitive list of factors
plaintiffs must disprove but also fails to define any of the factors it does list. The
Court is unable or unwilling to articulate how natural and historical boundaries,
population density, etc., figure into the analysis except to say that they are
“considerations” or “factors that may have been considered.”
The Court further confuses its standard by characterizing it as an objective
test—as it must; in Pearson I, this Court declared the constitutional standards
governing the redistricting process to be “mandatory and objective, not
subjective.” Pearson I, 359 S.W.3d at 40. But the principal opinion’s repeated use
of the word “considerations” and “considers” belies this characterization. If the
inquiry involves what the legislative body has considered, or what was an
important consideration was during redistricting, then it is an inquiry into the
11
legislative body’s mental state, and thus the standard is subjective. 7 The principal
opinion states in one sentence that Plaintiffs must “consider[] the additional
factors that may have been important considerations in the challenged map,” and
in the next states this “requir[es] no proof of the subjective intent of the
reapportionment commission.” Principal Opinion, at *29. The two quoted
sentences articulate two contradictory legal standards, the former subjective and
the latter objective.
Theoretically, additional factors could be incorporated into a truly objective
standard, but only if this Court definitively lists these factors or at least explains
how to ascertain them independently of the legislative body’s mental state. As it
stands, all anyone knows about the standard to which the principal opinion holds
redistricting maps is that maps may ignore constitutional requirements so long as
the drafters took into consideration any considerations that they may have
considered. The principal opinion insists that this is an objective standard. It is not.
It is very close to being no standard at all.
V
Two obvious problems arise from the principal opinion’s approach. First, it
weakens Missourians’ constitutional rights, preserved in the language of the constitution,
7
See BLACK’S LAW DICTIONARY 1535 (9th ed. 2009) (“[O]bjective standard. ... A legal
standard that is based on conduct and perceptions external to a particular person. ...
[S]ubjective standard. ... A legal standard that is peculiar to a particular person and based
on the person’s individual views and experiences.”). Cf. Hodges v. American Bakeries
Co., 412 S.W.2d 157, 162 (Mo. banc 1967) (explaining that subjective standards are
“personal” and “individual” while objective standards are “external”).
12
to live in compact, contiguous, and equally populated voting districts. The principal
opinion allows subjective, discretionary factors not mentioned in the constitution to
trump these express requirements. This effectively writes the compactness and population
equality provisions out of the constitution, despite the maxim that “[e]very word in a
constitutional provision is assumed to have effect and meaning ....” Ensor v. Dir. of
Revenue, 998 S.W.2d 782, 784 (Mo. banc 1999). The principal opinion’s approach
dilutes our constitution’s vaccine against gerrymandering and reduces it to placebo.
The second problem is tied to the first. The principal opinion does not list or
define all the factors that may override the compactness requirement. This leaves the
burden on a plaintiff challenging the plan to prove that the noncompactness did not arise
from an infinite number of unspecified factors not even raised by the state as defenses.
This burden is so onerous as to all but render redistricting challenges nonjusticiable and
constitutional rights unenforceable. Plaintiffs would be faced with the Kafkaesque
challenge of meeting a burden of proof that is not specified and that roves and floats with
the whim and imagination of the reviewing judge. 8
8
Interpreting “as may be” and “as possible” to allow for nonconstitutional discretionary
considerations could be consistent with the United States Supreme Court’s framework
that shifts the burden to the state to “show with some specificity that a particular
objective required the specific deviations in its plan.” Karcher v. Daggett, 462 U.S. 725,
741 (1983). But, even when using such a test, the Supreme Court required states to apply
proffered considerations consistently “throughout the state in a systematic, not an ad hoc
manner.” Id. (quoting Kirkpatrick I, 394 U.S. at 535).
At the very least, if the principal opinion insists upon diluting the rights expressly
stated in the constitution with discretionary factors, the burden should be shifted to the
state to raise and prove those issues. Several states shift the burden between plaintiff and
state when population equality is challenged. See, e.g., Egan v. Hammond, 502 P.2d 856,
867 (Alaska 1972); In re Legislative Districting of Gen. Assembly, 193 N.W.2d 784, 791,
13
The principal opinion bestows on legislative bodies discretion to subordinate the
Constitution to the political pressures of the day. But the job of the Supreme Court is to
honor and protect the rights claimed by the people of Missouri in their constitution, not to
finesse those rights away. This is especially true when the case involves elections, which
are the life’s breath of democracy. As was said in Reynolds v. Sims:
We are told that the matter of apportioning representation in a state
legislature is a complex and many-faceted one. We are advised that States
can rationally consider factors other than population in apportioning
legislative representation. We are admonished not to restrict the power of
the States to impose differing views as to political philosophy on their
citizens. We are cautioned about the dangers of entering into political
thickets and mathematical quagmires. Our answer is this: a denial of
constitutionally protected rights demands judicial protection; our oath and
our office require no less of us.
377 U.S. at 566.
_________________________________
WILLIAM RAY PRICE, JR., Judge
supplemented by 196 N.W.2d 209 (Iowa 1972), amended sub nom. Matter of Legislative
Districting of Gen. Assembly, 199 N.W.2d 614 (Iowa 1972); Jackman v. Bodine, 262
A.2d 389, 395 (N.J. 1970); Opinion of the Justices, 230 N.E.2d 801, 804 (Mass. 1967).
Other states have expanded burden-shifting to redistricting challenges beyond
population variance. See, e.g., In re Reapportionment of the Colorado Gen. Assembly,
828 P.2d 185 (Col. 1992); Fonfara v. Reapportionment Comm’n, 610 A.2d 153 (Conn.
1992); Schrage v. State Bd. of Elections, 430 N.E.2d 487 (Ill. 1981); In re Legislative
Districting of Gen. Assembly, 193 N.W.2d at 791; In re Legislative Districting of State,
805 A.2d 292 (Md. 2002); In re Livingston, 160 N.Y.S. 462, 469 (N.Y. Sup. Ct. 1916);
Stephenson v. Bartlett, 582 S.E.2d 247 (N.C. 2003); State ex rel. Lockert v. Crowell, 656
S.W.2d 836 (Tenn. 1983); In re Reapportionment of Towns of Hartland, Windsor, and W.
Windsor, 24 A.2d 323 (Vt. 1993). And Missouri has employed burden-shifting in cases
outside the redistricting context. For example, Missouri courts shift the burden in cases
involving special laws. See City of Springfield v. Sprint Spectrum, L.P. 203 S.W.3d 177,
186 (Mo. banc 2006) (requiring the party defending the statute to “demonstrate a
substantial justification”) (emphasis in original).
14
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