Professional Documents
Culture Documents
WD83962
_____________________________________________________________
IN THE
MISSOURI COURT OF APPEALS
WESTERN DIVISION
_______________________________________________________________
On Appeal from the Circuit Court of Cole County, Missouri, Case No. 20AC-CC00206
_______________________________________________________________
1
TABLE OF CONTENTS
PAGE
2
TABLE OF AUTHORITIES
Page(s)
CASES
Bartlett v. Strickland,
556 U.S. 1 (2009) ......................................................................................................... 22
Gill v. Whitford,
138 S. Ct. 1916 (2018), 2017 WL 3948432 ................................................................. 25
Lieb v. Walsh,
45 Misc. 3d 874 (N.Y. Sup. Ct. 2014) ......................................................................... 30
3
Thornburg v. Gingles,
478 U.S. 30 (1986) ................................................................................................. 20, 22
Whitford v. Gill,
218 F. Supp. 3d 837 (W.D. Wis. 2016), vacated and remanded on other
grounds, 138 S. Ct. 1916 (2018) .................................................................................. 25
Whitford v. Nichol,
151 F. Supp. 3d 918 (W.D. Wis. 2015) ....................................................................... 25
CONSTITUTIONS
STATUTES
4
OTHER AUTHORITIES
Chico Harlan, In St. Louis, Delmar Boulevard Is the Line That Divides a
City by Race and Perspective, The Wash. Post, (Aug. 22, 2014),
https://www.washingtonpost.com/national/in-st-louis-delmar-boulevard-
is-the-line-that-divides-a-city-by-race-and-
perspective/2014/08/22/de692962-a2ba-4f53-8bc3-
54f88f848fdb_story.html ............................................................................................. 17
Chris Evans, It’s the Autonomy, Stupid: Political Data-Mining and Voter
Privacy in the Information Age, 13 Minn. J.L. Sci. & Tech. 867 (2012) .................... 34
David W. Nickerson & Todd Rogers, Political Campaigns and Big Data,
28 J. Econ. Persps. 51 (2014) ....................................................................................... 34
5
H.R. 1, 116th Cong. § 2413(a)(1)(C)(2019) ...................................................................... 21
Matt Barreto, Christian Grose & Ana Henderson, Coalition Districts and
the Voting Rights Act, Res. Brief (The Warren Inst. on Law & Soc.
Policy, Berkeley, Cal.), May 2011,
www.law.berkeley.edu/files/Coalition(1).pdf.............................................................. 21
New National Bipartisan Redistricting Poll, Campaign Legal Ctr. (Jan. 28,
2019), https://campaignlegal.org/document/new-national-bipartisan-
redistricting-poll ........................................................................................................... 33
6
Office of Budget and Planning, Archived 2010-2012 Process Senate
Apportionment Commission, Mo. Office of Admin.,
https://oa.mo.gov/budget-planning/redistricting-office/archived-2010-
2012-process-information/2011-commission-members (last visited Aug.
24, 2020) ...................................................................................................................... 33
S.J.R. 38, 100th Gen. Assemb., Reg. Sess. (Mo. 2020) ............................................. passim
Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A
Social Identity Perspective on Polarization, 76 Pub. Opinion Q. 405
(2012) ........................................................................................................................... 33
7
INTEREST OF AMICI CURIAE
Amici curiae are organizations that support a fair redistricting process, advocate on
behalf of communities of color during redistricting, litigate racial, partisan, and prison-
based gerrymandering cases, and work within Missouri’s communities of color to protect
the right to vote and ensure everyone can have their voices heard. Amici strongly believe
that free and fair elections—and by extension, fair districting plans—are the bedrock of
our democracy. They have a significant interest in this case, given their longstanding
concern and advocacy against the growth of extreme partisan control over redistricting—a
pernicious tactic that deeply offends the constitutional principles that form the foundation
of republican governments.
dedicated to developing programs that will extend democracy to those who have been
strengthening political alliances needed to assure democratic social change and projecting
social and economic programs that will improve the lives of all Americans. To achieve
these goals, the APRI-St. Louis Chapter believes in the creation of a broad based coalition
of forces who believe in social progress for minorities, the poor and working people. The
Labor Movement occupies a pivotal role in this alliance since it serves as a bi-racial
change. The A. Philip Randolph Institute’s programs seek to enhance the role of all trade
unionists and, as a civil rights organization, the Institute works hard to make sure African
8
Americans are part of the democratic process. The policies and programs of the A. Philip
Randolph Institute and its affiliates have been governed by strict adherence to the political
and promotes the civil rights of Asian Americans. By combining litigation, advocacy,
education, and organizing, AALDEF works with Asian American communities across the
country to secure human rights for all. AALDEF has monitored elections through annual
multilingual exit poll surveys since 1988. Consequently, AALDEF has documented both
the use of, and the continued need for, protection under the Voting Rights Act of 1965.
AALDEF has litigated cases that implicate the ability of Asian American communities of
interest to elect candidates of their choice, including lawsuits involving equal protection
The Brennan Center for Justice at New York University School of Law (“the
Brennan Center”) is a not-for-profit, non-partisan think tank and public interest law
institute that seeks to reform, revitalize, and when necessary, defend our country’s systems
of democracy and justice.1 It was founded in 1995 to honor the extraordinary contributions
of Justice William J. Brennan, Jr. to American law and society. Through its Democracy
Program, the Brennan Center seeks to bring the idea of representative self-government
closer to reality, including through work to protect the right to vote and to ensure fair
1
This brief does not purport to convey the position of New York University School of
Law.
9
redistricting practices. The Brennan Center conducts empirical, qualitative, historical, and
partisan gerrymandering, and other redistricting suits in the nation’s courts, and regularly
issues, including by participating in voting rights cases across the country as both counsel
for parties and as amicus curiae. CLC aims to ensure the protection of Americans’ voting
rights to encourage widespread and equal participation in the democratic process. CLC
has expertise in legal issues related to the fundamental right to vote protected by the
Constitution and the rights protected by the Voting Rights Act. CLC advocates for the
Dēmos is a dynamic “think-and-do” tank that powers the movement for a just,
inclusive, multiracial democracy. Dēmos was founded in 2000, and has offices in New
York, Boston, and Washington, D.C. The goals of removing barriers to political
participation for Black and brown communities and ensuring full representation of
America’s diverse citizenry are central to Dēmos’s mission. Dēmos deploys original
research, advocacy, litigation, and strategic communications to protect voting rights and
The Southern Coalition for Social Justice (“SCSJ”) is a 501(c)(3) nonprofit public
interest law organization founded in 2007 in Durham, North Carolina. SCSJ partners with
10
communities of color and economically disadvantaged communities in the South to defend
and advance their political, social, and economic rights through the combination of legal
guarantee of an equal right to vote for all citizens and the guarantee that each person’s vote
carries equal weight. One of SCSJ’s primary practice areas is redistricting and voting
rights. SCSJ frequently represents clients challenging statewide and local redistricting
plans that violate the Equal Protection Clause of the Fourteenth Amendment or the Voting
Rights Act of 1965, as well as state constitutional mandates on redistricting. SCSJ has
represented individual and organizational clients in redistricting cases across the South,
including Florida, Georgia, North Carolina, South Carolina, Tennessee, Texas, and
Virginia. Amicus has also worked closely with organizations in North Carolina, Florida,
and Virginia on redistricting reform that centers race equity and protects communities of
Missouri Jobs with Justice is a coalition of community, labor, student, and faith-
based groups and individuals working to build transformative power for social, racial, and
economic justice in Missouri. Jobs with Justice brings people together, connecting them
to a strong, statewide movement and works to build long-term power while remaining agile
and vigilant to quickly respond when immediate threats to our communities and values
neighborhoods to win real change and concrete victories on the issues that matter the most
for working families. With its affiliate Missouri Jobs with Justice Voter Action, Jobs with
Justice organizes immediate and public actions by voters in response to the actions of their
11
elected officials under the belief that when voters know what their representatives are
doing, they can respond in real-time to reward good leadership and public service, and
network of approximately 50 non-profit organizations who work to secure the right to vote
for all eligible Missourians. Since 2006, coalition partners have collaborated to expand
access to the ballot for Missouri voters and remove barriers that impede the right to vote,
seniors and other marginalized voters. MOVPC advances its mission through four areas
of work, including: policy advocacy; legal advocacy and litigation; voter engagement and
members provided support for the Clean Missouri amendment in 2018 and engaged its
members in advocacy during the 2020 legislative session opposing SJR 38, the legislation
measure. MOVPC and its members have participated in strategic litigation to advance the
right to vote in Missouri, including cases advocating for the rights of voters to cast ballots
by mail without a notary during the COVID-19 pandemic, litigation challenging strict voter
The Organization for Black Struggle (“OBS”) is a Black-led group based in St.
Louis, Missouri. Founded in 1980, it has been on the frontline of pushing democratic
transformation and organizing across issues impacting the African American community.
OBS is active in voter registration, voter education and voter protection to ensure
12
maximum voter participation as one of the critical ways to engage its base. It is a champion
of voter rights especially for those marginalized by the current electoral system.
Amici have received consent from counsel for Appellants and from counsel for
Respondents to file this brief in accordance with Rule 84.05(f)(2) of the Missouri Rules
of Civil Procedure and Special Rule 26 of the Rules of the Missouri Court of Appeals of
the Western District. In addition to obtaining consent by both parties, Amici have filed a
motion for leave to file this brief consistent with Rule 26 of this Court.
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
13
ARGUMENT
I. The Circuit Court Did Not Err in Finding the Ballot Language Insufficient
and Unfair Because the Language Drafted by the Legislature Did Not
Disclose Key Changes Amendment 3 Would Make to the Redistricting
Process.
The Circuit Court held that the summary statement for Amendment 3 is insufficient
and unfair for several reasons, including because “it fails even to allude” to the fact that, if
it became law, Amendment 3 would “wholesale repeal” the redistricting reforms that the
A key component of those reforms are the robust protections that were added to the
written, the summary statement misleads voters into believing that Amendment 3 would
provide people of color with additional voting-rights protections, when in reality, it would
strip away the very protections added only two years ago. Amendment 3 also tells voters
that it will prioritize key values such as “partisan fairness,” but it instead opens the door to
increased partisan gerrymandering and, with it, more pathways to undermine the political
power of Black, Latino, and Asian voters. Amici write to explain just how detrimental
Amendment 3 would be to the voting rights for communities of color. Amici also write to
discuss the significance of the repeal of the Nonpartisan State Demographer, and the
summary statement’s false assertion that Amendment 3 would “create” new “independent”
2
Circuit Court Slip Op. at 6.
14
and “citizen-led” commissions to draw district lines. For the reasons set forth below, the
protections for the voting rights of communities of color. A “yes vote” on Amendment 3
would undermine these important safeguards, which are stronger than protections currently
available under federal law.3 Yet the deceptive summary statement language drafted by
the General Assembly makes no reference to this reversal of protections approved by the
voters and gives the false impression that the amendment actually enhances, rather than
weakens, protections for communities of color. Appellants maintain that the 50-word limit
on the summary statement prevents them from including such “details.” But that is, at best,
a reason for excluding any reference in the summary statement to “minority protections,”
that Amendment 3’s impact on minority protections would be exclusively negative. The
3
If passed, Amendment 3 would replace the current language in the Missouri
Constitution with the following: “The following principles shall take precedence over
any other part of this constitution: no district shall be drawn in a manner which results
in a denial or abridgment of the right of any citizen of the United States to vote on
account of race or color; and no district shall be drawn such that members of any
community of citizens protected by the preceding clause have less opportunity than
other members of the electorate to participate in the political process and to elect
representatives of their choice . . . .” S.J.R. 38, 100th Gen. Assemb., Reg. Sess. (Mo.
2020).
15
Circuit Court’s revised summary statement takes this into account by simply stating that
Amendment 3 would “repeal rules for drawing legislative districts approved by voters in
November 2018 and replace them with rules proposed by the legislature.”4
The heightened protections that voters are being asked to repeal are critical for fair
of segregation and inequity,” and where the death of Michael Brown, Jr. in 2014 led to
“Ferguson” becoming “synonymous with racial strife and inequality in the United States.”5
Voters should not be asked to make this decision without an understanding of what is at
stake.
Indeed, the barriers that communities of color face in the political process in
Missouri continue to be significant. For example, in finding that the electoral structure of
the school board of the Ferguson-Florissant School District deprived Black voters of an
equal opportunity to elect representatives of their choice, a federal court recently concluded
that “once-formalized policies of racial segregation” are still “inscribed on the regional
4
Circuit Court Slip Op. at 10.
5
City of St. Louis, Equity Indicators Baseline Report 15 (2019), https://www.stlouis-
mo.gov/government/departments/mayor/initiatives/resilience/equity/documents/
upload/Equity-Indicators-Baseline-2018-Report-Document.pdf.
6
See Mo. State Conference of the NAACP v. Ferguson-Florissant Sch. Dist., 201 F.
Supp. 3d 1006, 1068–69 (E.D. Mo. 2016) (citations and quotations omitted), aff’d,
894 F.3d 924 (8th Cir. 2018).
16
Likewise, in 2019, the Urban League of Greater Kansas City released a report that
education, social justice, and civil engagement since the passage of the Civil Rights Act of
1964 and the Voting Rights Act of 1965.”7 The report found that, compared to the 100-
point white index, the Black equality index stood at 73 points and the Latino index at 77.2
communities in Kansas City.8 Similarly, the City of St. Louis recently conducted an
extensive assessment of indicators such as health and safety, education quality, and
financial empowerment, and found that, on aggregate, it scored a 45.57 out of 100 on the
equity scale.9
The enduring legacy of discrimination and stark racial disparities can still be
mapped in Missouri. The Troost divide in Kansas City and the Delmar divide in St.
Louis—boundaries that perpetuate racial division and segregation in these two cities10—
7
Gwendolyn Grant, Urban League of Greater Kan. City, 2019 State of Black Kansas
City Equality Index 13 (2019), https://www.ulkc.org/2019-black-kc.
8
Id. at 15, 25.
9
Equity Indicators Baseline Report, supra note 5, at 6 (2019).
10
See, e.g., Briana O’Higgins, How Troost Became a Major Divide in Kansas City,
KCUR (Mar. 27, 2014), https://www.kcur.org/community/2014-03-27/how-troost-
became-a-major-divide-in-kansas-city; Chico Harlan, In St. Louis, Delmar Boulevard
Is the Line That Divides a City by Race and Perspective, The Wash. Post (Aug. 22,
2014), https://www.washingtonpost.com/national/in-st-louis-delmar-boulevard-is-the-
line-that-divides-a-city-by-race-and-perspective/2014/08/22/de692962-a2ba-4f53-
8bc3-54f88f848fdb_story.html.
17
have not been bridged and relegated to history books. Enhanced protections for
communities of color in redistricting were a long-standing need, one that the 2018 reforms
centered and advanced. The Circuit Court correctly concluded that the summary statement
for Amendment 3 is misleading, insufficient, and unfair because, among other things, it
misleadingly suggests that the proposed amendment would add new protections for voters
of color, and because it fails to disclose that a “yes vote” would strip out critical voting-
rights protections for communities of color that were enshrined in the Missouri
Constitution in 2018.11
protections stronger than those currently offered to voters under the federal Voting Rights
would, for example, eliminate the Missouri Constitution’s specific prohibition against
redrawing districts maps “with the intent or result” of “diminishing” a minority group’s
ability to elect representatives of its choice.13 It also would delete any reference to
protections for language minorities.14 And it would remove the Missouri Constitution’s
guarantee that districts will not be drawn to diminish the ability of a minority voter to vote
11
See Circuit Court Slip Op. at 9 (describing some of the ways in which Amendment 3
“would significantly weaken” the Missouri Constitution’s “robust protections for
minority voters”).
12
Compare Mo. Const. art. III, § 3, with 52 U.S.C. § 10301.
13
See S.J.R. 38, 100th Gen. Assemb., Reg. Sess. (Mo. 2020).
14
See id.; see also Circuit Court Slip Op. at 9.
18
“in concert with other persons,” including in so-called “coalition districts” comprising
members of different racial or language minorities who can combine their efforts to elect
candidates of their choice.15 These are substantive changes that will alter the permissible
redistricting outcomes, and thus constitute material information to a voter deciding whether
would leave any of Missouri’s minority voters with less representation and political power
than they had before. And, crucially, this safeguard protects against redistricting changes
that may be difficult to challenge by means of a traditional vote dilution claim, such as
where minority voters are not quite 50 percent of the citizen voting age population.18 This
protection against retrogression, combined with protections against vote dilution discussed
15
See S.J.R. 38, 100th Gen. Assemb., Reg. Sess. (Mo. 2020).
16
Galen Bacharier, Voters Approved Clean Missouri, but Lawmakers Want Them to
Reconsider, The Missourian (Mar. 18, 2019), https://www.columbiamissourian.com/
news/state_news/voters-approved-clean-missouri-but-lawmakers-want-them-to-
reconsider/article_4a4739e4-404d-11e9-b735-bfff863b5ed4.html.
17
Mo. Const. art. III, § 3.
18
See Thornburg v. Gingles, 478 U.S. 30, 50–51 (1986); see also Nicholas
Stephanopoulos, The South After Shelby County, U. Chi. Pub. L. & Legal Theory
Working Paper No. 451, at 16–20 (2013).
19
The inclusion of this non-retrogression standard in the 2018 reforms was a
significant win for voters of color and language minority voters. Currently, federal law
provides no such protection.19 Because of the 2018 reforms, Black, Latino, and Asian
voters in Missouri can look for the first time to their own state Constitution for robust
law, however, Missouri’s new heightened protections for voters of color would disappear.
Changing the Missouri Constitution in this way would leave communities of color without
critical protection for voters of color: the Missouri Constitution’s guarantee that districts
will not be drawn to abridge the right of a minority voter in Missouri to vote “in concert
with other persons,” including in a coalition district comprising members of different racial
or language groups.20 This provision, which the Missouri electorate enacted as part of 2018
19
Section 5 of the Voting Rights Act has a similar protection for those states that fall
under the Act’s preclearance requirements, but Missouri has never been covered by
Section 5 and, in any event, Section 5 is currently inoperative due to the U.S.
Supreme Court’s ruling in Shelby County v. Holder, 570 U.S. 529 (2013).
20
See Mo. Const. art. III, § 3.
21
This provision has been emulated in legislative proposals at the federal level. See
Michael Li & Yurij Rudensky, Rethinking the Redistricting Toolbox, 62 How. L. J.
713, 731 (2019) (discussing the inclusion of the same language currently in the
Missouri Constitution in the Redistricting Reform Act of 2019, H.R. 1, 116th Cong.
§ 2413(a)(1)(C)(2019)).
20
recognizes a state-law right of voters from one racial or language minority group to join
other like-minded local minority groups to form a coalition to elect the coalition’s choice
of candidate, even if each group could not command a majority on its own.22
Coalition districts are particularly important for Missouri’s Latino and Asian
communities, which are growing quickly but do not form a compact majority-minority
district on their own. Without this added protection in Missouri law, these communities
Importantly, the provision goes beyond settled federal law, as the federal circuits are split
on whether multiple minority groups can form a coalition for purposes of enforcing Section
2 of the Voting Rights Act, and the Eighth Circuit Court of Appeals has yet to weigh in on
the issue.23 Missouri voters in 2018, by contrast, approved strong and unambiguous
22
See Matt Barreto, Christian Grose & Ana Henderson, Coalition Districts and the
Voting Rights Act, Res. Brief (The Warren Inst. on Law & Soc. Policy, Berkeley,
Cal.), May 2011, at 1, www.law.berkeley.edu/files/Coalition(1).pdf.
23
Under Section 2 of the Voting Rights Act, districts cannot be drawn to divide or over-
concentrate a minority population in a way that dilutes its voting strength, and a
minority community that is “sufficiently large and geographically compact to
constitute a majority” in a district can challenge a district map as dilutive. See
Thornburg v. Gingles, 478 U.S. 30, 50–51 (1986). The U.S. Supreme Court,
however, has expressly reserved the question of whether multiple minority groups can
form a coalition for purposes of enforcing Section 2 of the Voting Rights Act. See
Bartlett v. Strickland, 556 U.S. 1, 13-14 (2009). The Eighth Circuit has not yet
weighed in, and the other Courts of Appeals are divided. One Circuit has declined to
extend Voting Rights Act protection to coalition districts, while four other Circuits
have either explicitly or implicitly indicated a willingness to permit Section 2
enforcement in coalition districts. Compare Nixon v. Kent County, 76 F.3d 1381,
1386–87 (6th Cir. 1996), with Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th
Cir. 1988); Concerned Citizens of Hardee Cnty. v. Hardee Cnty. Bd. of Comm’rs, 906
F.2d 524, 526–27 (11th Cir. 1990); Badillo v. City of Stockton, 956 F.2d 884, 890–91
(9th Cir. 1992); and Bridgeport Coal. for Fair Representation v. City of Bridgeport,
21
enhanced state-law protection to communities of color. Amendment 3 would strip away
this protection under cover of silence if its summary statement is allowed to stand.
fairness into the Constitution as a key factor to be considered in drawing districts.24 The
summary statement is silent to the fact that Amendment 3 would upend the expressed
preferences of Missouri voters and downgrade partisan fairness to be the least important
redistricting criterion, opening the door to both partisan gerrymandering and racial
discrimination. Specifically, Amendment 3 would revise Mo. Const. art. III, § 3 to require
that the consideration of equal population apportionment, compliance with federal laws,
compactness, and political subdivision conformity each “take precedence over partisan
When electoral districts are redrawn every decade, political parties work to
manipulate district lines in ways that box out their competition and maximize their own
chances for reelection. By engaging in partisan gerrymandering, map drawers can draw
26 F.3d 280 (2d Cir. 1994), vacated and remanded on other grounds, 512 U.S. 1283
(1994).
24
See Mo. Const. art. III, § 3(c)(1)(b).
25
S.J.R. 38, 100th Gen. Assemb., Reg. Sess. (Mo. 2020); see also Circuit Court Slip Op.
at 9 (“The Constitution also already requires legislative districts to be drawn on the
basis of fairness and competitiveness. Far from strengthening, or even perpetuating,
this requirement, [Amendment 3] would actually render these criteria less important
by providing that every other consideration ‘shall take precedence over partisan
fairness and competitiveness’ . . . .” (citation omitted)).
22
maps to give an outsized advantage to one party over the other. Two gerrymandering
tactics are most prevalent: (i) the “cracking” of like-minded voters, by spreading them
among multiple districts to deny them a sufficiently large voting bloc in any single district;
and (ii) the “packing” of like-minded voters, by concentrating them as much as possible
into a single electoral district to reduce their influence on other districts. Communities of
color are often key to both “packing” and “cracking.” Because communities of color tend
to heavily favor Democrats, race is a convenient proxy for partisanship. And because of
residential segregation, communities of color are an efficient means for locating large blocs
The goal of either tactic is to maximize the number of “wasted votes” cast by
where their votes will likely have no influence on the outcome of an election, or by
condensing voters of a party into a district where there already is a strong majority, making
their additional votes unnecessary. A statistical measure known as the “efficiency gap”
has been adopted to measure the degree to which a map has been gerrymandered using
“packing” or “cracking.” In short, the smaller the efficiency gap, the less “cracking” and
“packing” exists in a district map, meaning that fewer “wasted votes” are cast in an
election.
The Missouri Constitution currently requires map drawers to ensure that the
efficiency gap be as close to zero as practicable, meaning that each party’s seat share should
23
more or less match its statewide vote share.26 By contrast, Amendment 3 would allow this
Allowing an efficiency gap of 15 percent would open the door to virtually unlimited
partisan abuses. Indeed, a 15-percent efficiency gap is nearly double the 8-percent
threshold that scholars and experts consider a signal of gerrymandering.28 Such a large gap
would let Missouri adopt maps on par or even more egregious than some of the most
notorious gerrymanders in recent history, such as the 2012 gerrymander of the Wisconsin
state legislature, which produced an efficiency gap of 13 percent and was, at the time, the
“28th largest score in modern American history (out of nearly 800 total plans),”29 and the
percent and was struck down as unconstitutional by state courts.30 An efficiency gap of 15
26
See Mo. Const. art. III, § 3(c)(1)(b).
27
See S.J.R. 38, 100th Gen. Assemb., Reg. Sess. (Mo. 2020).
28
See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and
the Efficiency Gap, 82 U. Chi. L. Rev. 831, 887 (2015) (recommending a maximum
eight percent efficiency gap for state house plans).
29
Whitford v. Nichol, 151 F. Supp. 3d 918, 922 (W.D. Wis. 2015); see also Whitford v.
Gill, 218 F. Supp. 3d 837, 861 (W.D. Wis. 2016) (recounting expert testimony that
the 2012 efficiency gap in Wisconsin was “among the largest scores . . . seen
anywhere”), vacated and remanded on other grounds, 138 S. Ct. 1916 (2018).
30
League of Women Voters v. Commonwealth, 178 A.3d 737, 778, 825 (Pa. 2018). This
map was ultimately replaced with one adopted by the state supreme court. See
League of Women Voters v. Commonwealth, 181 A.3d 1083, 1087 (Pa. 2018) (per
curiam).
24
Federal voting rights jurisprudence provides no recourse against partisan
the enlargement of the permissible efficiency gap, leaves communities of color in Missouri
particularly vulnerable.32 Because race and party affiliation are closely aligned in
Missouri’s Black, Latino, and Asian communities, efforts to enact a partisan gerrymander
are likely to target these communities, adjusting the percentage of heavily Democratic
minority voters in a district to control just how Democratic or Republican a district is.33
despite a significant increase in the number of Black state residents due to strategic
packing.34 In North Carolina, courts struck down as a partisan gerrymander a map for state
31
See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
32
See Br. of Amici Curiae NAACP Legal Def. & Educ. Fund, Inc. et al. Supporting
Appellees at 28–33, Gill v. Whitford, 138 S. Ct. 1916 (2018) (No. 16-1161), 2017 WL
3948432 (surveying legal difficulties facing minority voters marginalized by partisan
gerrymanders).
33
See Justin Mark Levitt, Introducing “Clustering”: Redistricting in Geographic
Perspective 37–39, 46, 64–66 (2016) (Ph.D. dissertation, University of California,
San Diego) (California Digital Library); see also Richard L. Hasen, The
Gerrymandering Decision Drags the Supreme Court Further into the Mud, N.Y.
Times (Jun. 27, 2019), https://www.nytimes.com/2019/06/27/opinion/
gerrymandering-rucho-supreme-court.html.
34
Rep. Gwen Moore, The Burdens of Gerrymandering Are Borne by Communities of
Color, NBC News: Think (Nov. 6, 2017), https://www.nbcnews.com/think/opinion/
burdens-gerrymandering-are-borne-communities-color-ncna817446; see also Olga
Pierce & Kate Rabinowitz, ‘Partisan’ Gerrymandering Is Still About Race,
ProPublica (Oct. 9, 2017), https://www.propublica.org/article/partisan-
gerrymandering-is-still-about-race; Kim Soffen, How Racial Gerrymandering
25
legislative districts that was previously rejected by a federal court because it was drawn
with the intent to racially gerrymander.35 As drawn, the proposed map did “not permit
voters to freely choose their representative, but rather [permitted] representatives [to
choose] voters based upon sophisticated partisan sorting.”36 In other words, a racial
gerrymander was remedied with a partisan one that was just as effective in suppressing the
Amendment 3’s changes to the redistricting criteria approved by voters, and the pernicious
commissions that already exist” and which until 2018 had sole responsibility for legislative
Deprives Black People of Political Power, Wash. Post (June 9, 2016), https://www.
washingtonpost.com/news/wonk/wp/2016/06/09/how-a-widespread-practice-to-
politically-empower-african-americans-might-actually-harm-them.
35
Common Cause v. Lewis, No. 18-CVS-014001, 2019 WL 4569584, at *3 (N.C. Super.
Ct. Sept. 3, 2019).
36
Id.
37
Circuit Court Slip. Op. at 8.
26
redistricting in Missouri.38 Amendment 3 would not only restore map drawing power to
those political commissions, it would completely eliminate the office of the Nonpartisan
State Demographer (the central feature of Missouri’s recent effort to implement protections
independence into the redistricting process. The summary statement’s language is silent
as to this change. The resulting structure could not be further from “citizen-led” or
“independent.”
For decades, Missouri’s legislative maps were drawn by two political commissions,
whose members were appointed by the Governor from pools of candidates nominated by
the state’s two major political parties.39 In 2018, a majority of Missourians severely limited
the map-drawing powers of this commission system by voting in favor of establishing the
office of the Nonpartisan State Demographer, who was to assume the role of legislative
3 would eliminate this newly created office and return control over legislative map drawing
to the legislative commissions that existed before 2018. And, although these commissions
would be revived under new names and with more members, they are no more “citizen-
38
Id.
39
Mo. Const. art. III, §§ 3, 7.
40
Mo. Const. art. III, § 3.
41
See Fair Ballot Language (“The amendment . . . giv[es] redistricting responsibility to
a bipartisan commission, renames them, and increases membership to 20 by adding
27
At the outset, the commissions revived by Amendment 3 would be far from
from lawmakers and party officials.42 Missouri’s commissions plainly do not operate in
that fashion. Rather, the redistricting commissioners are selected by the Governor from
pools of nominees put forth by the state’s major political parties.43 Amendment 3 again
several states have successfully established redistricting processes that could fairly be
called “independent.” In California, for example, the process is exhaustive, with numerous
checks and balances. Persons interest in serving on the commission must complete a
Democrat, one Republican, and one who is independent or a member of a third party)
appointed by the California State Auditor. The panel then by unanimous vote creates pools
of qualified and disinterested applicants and then, after strikes from legislative majority
and minority leaders, the California State Auditor randomly selects the first eight members
of the commission from the list of screened applicants. Those appointed members in turn
four commissioners appointed by the Governor from nominations by the two major
political party’s state committees.”)
42
See Circuit Court Slip Op. at 8 (“[U]se of the word ‘independent’ implies that the
commissions’ members will be independent of the political process.”); see also D.
Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671, 733 (2013).
43
Mo. Const. art. III, §§ 3, 7.
28
appoint six other members from the same pre-screened applicant pools.44 The commission
qualified applicant pools after legislative majority and minority leaders have each stricken
appointments screens and nominates a pool of candidates, from which house and senate
majority and minority leaders each select a commissioner;47 those four commissioners then
select a fifth member.48 Although lawmakers pick four of the members of the Arizona
commission, they have no control over the pool of applicants.49 And, in Colorado, a
“political” commissions, not unlike the ones in New Jersey and Washington State, in which
state legislators and other public officials directly appoint the members of the redistricting
44
See Cal. Gov. Code § 8252.
45
Cal. Const. art. XXI, § 2(c)(1).
46
See Mich. Const. art. IV, § 6(2)(d)–(f).
47
Ariz. Const. art. IV, pt. 2, § 1.
48
Id.
49
See id.
50
Colo. Const. art. V, § 47.
29
commission.51 Not surprisingly, in many cases, members of political commissions are
Missouri’s legislature is not the first to invoke the word “independent” strategically
York tried a similar tactic.52 There, the amendment put before the voters would have
created a ten-member redistricting commission in which the State’s four legislative leaders
would select eight members, and the final two would be selected by those eight.53 Ballot
language described the process as “independent.” But a court rejected that description,
explaining that this appointment process could not possibly be described as independent
since eight members would be “handpicked appointees of the legislative leaders and the
legislative leaders still had substantial input into the commission’s work, the New York
court required the State Board of Elections to strike the word “independent” from its
description of the commission on ballots.55 For similar reasons, the word “independent”
51
N.J. Const. art. IV, § 3; Wash. Const. art. II, § 43(1)–(3); Wash. Rev. Code §
44.05.030; see also Alaska Const. art. VI, § 8; Haw. Const. art. IV, § 2; Pa. Const. art.
II, § 17(a-b).
52
See Lieb v. Walsh, 45 Misc. 3d 874, 880–82 (N.Y. Sup. Ct. 2014).
53
Id. at 878.
54
Id. at 880.
55
Id. at 881–82.
30
does not describe the redistricting process envisioned by Amendment 3, and thus should
Likewise, Amendment 3 does not create a commission that could fairly be described
insiders and that safeguards redistricting outcomes against the conflicts of interest of
mapmakers who would have an incentive to pick their voters.56 These safeguards include
limiting or restricting people involved in politics from serving as mapmakers. Some states,
including Montana, restrict public employees, elected officials, and/or public officials from
serving on redistricting commissions.57 Others, like Arizona and Colorado, limit former
candidates for public office, party officials, and/or campaign employees from serving on
commissions (nor does it need to because the commissions are no longer tasked with
56
See Justin Levitt, Essay, Weighing the Potential of Citizen Redistricting, 44 Loy. L.A.
L. Rev. 513, 532 (2011) (citizens’ commissions “attempt[] to address both the
concern with self-interest and the need for a legitimate but flexible decision-making
structure . . . . by assigning the redistricting pen to a set of potentially partisan citizens
not directly beholden to incumbent elected officials”).
57
See Mont. Const. art. V, § 14(2); see also Alaska Const. art. VI, § 8; Idaho Const. art.
III, § 2(2); Mich. Const. art. IV, § 6(1)(b); Pa. Const. art. II, § 17(a-b); Wash. Rev.
Code § 44.05.050.
58
Ariz. Const. art. IV, pt. 2, § 1(3); Colo. Const. art. V, § 47(2)(c); see also Cal. Const.
art. XXI, § 2(c)(6); Cal. Gov. Code § 8252; Idaho Const. art. III, § 2(2); Mich. Const.
art. IV, § 6(1)(b); Wash. Rev. Code § 44.05.050.
59
Ariz. Const. art. IV, pt. 2, § 1(3); Cal. Gov. Code § 8252; Colo. Const. art V,
§ 47(2)(c); Mich. Const. art. IV, § 6(1)(b); Wash. Rev. Code § 44.05.050.
31
redistricting), and Amendment 3 would not implement even one new measure that would
bring Missouri’s retooled process any closer to being “citizen-led.”60 Therefore, the
that existed in 2011. That year, a former Missouri Lieutenant Governor chaired the House
Apportionment Commission and a former state representative and state Senate candidate
the fact that the office of the non-partisan state demographer will be eliminated, the
a description that appeals to voters. Recent nationwide polling indicates that over 60
commissions draw district lines.62 The results at the ballot box speak for themselves: in
60
In Missouri, commissioners “shall be disqualified from holding office as members of
the general assembly for four years following the date of the filing by the commission
of its final statement of apportionment.” Mo. Const. art. III, § 3(e)(2). This rule does
nothing to reduce pre-existing conflicts of interest that might infect the commission’s
ability to perform its function impartially. Nor does this rule resemble efforts in other
states to produce “citizen-led” commissions.
61
See Office of Budget and Planning, Archived 2010-2012 Process House
Apportionment Commission, Mo. Office of Admin., https://oa.mo.gov/budget-
planning/redistricting-office/archived-2010-2012-process-information/house-
apportionment (last visited Aug. 24, 2020); Office of Budget and Planning, Archived
2010-2012 Process Senate Apportionment Commission, Mo. Office of Admin.,
https://oa.mo.gov/budget-planning/redistricting-office/archived-2010-2012-process-
information/2011-commission-members (last visited Aug. 24, 2020).
62
See New National Bipartisan Redistricting Poll at 3, Campaign Legal Ctr. (Jan. 28,
2019), https://campaignlegal.org/document/new-national-bipartisan-redistricting-poll.
32
2018, large majorities of voters opted to create independent redistricting procedures in
“independent” process has even greater value. Across the country, partisan identities have
grown stronger and more stable in recent years.65 At the same time, voter data has grown
far more granular and the technology to harness it more sophisticated, rendering partisan
mapmaking easier to achieve than ever before. Mapmakers can now accurately predict the
partisan leanings of voters by using a combination of census data, consumer data compiled
contribution history, precinct-level election results, and even analytic scores designed to
predict voters’ particular political characteristics.66 Mapmakers put that data to use in
63
Colorado Independent Redistricting Commissions, https://redistricting.colorado.gov/
(last visited August, 24, 2020).
64
Independent Citizens Redistricting Commission, Frequently Asked Questions, The
Off. of Sec’y of State Jocelyn Benson, https://www.michigan.gov/sos/0,4670,7-127-
1633_91141-488602--,00.html (last visited Aug. 24, 2020).
65
See Corwin D. Smidt, Polarization and the Decline of the American Floating Voter,
61 Am. J. Pol. Sci. 365, 365, 379–80 (2015) (showing the “observed rate of
Americans voting for a different party across successive presidential elections has
never been lower,” which indicates that each party has a reliable and predictable “base
of party support that is less responsive to short-term forces”); see also Shanto Iyengar,
Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A Social Identity Perspective
on Polarization, 76 Pub. Op. Q. 405, 412–15 (2012) (showing that although
enthusiasm for partisans’ own parties has remained relatively stable over time,
empirical evidence shows that “partisans like their opponents less and less”).
66
See Chris Evans, It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy
in the Information Age, 13 Minn. J.L. Sci. & Tech. 867, 883–88 (2012); see also
David W. Nickerson & Todd Rogers, Political Campaigns and Big Data, 28 J. Econ.
33
sophisticated software to create maps that reliably predict the projected partisan affiliation
commissions to carry out their duties in a nonpartisan manner, and it is all the more
when it is not.
process, the Missouri General Assembly attempted to align its description of Amendment
3 with those valued characteristics without taking any steps to introduce such independence
and citizen input into Missouri’s redistricting process. Those labels are plainly misleading
because they misrepresent to the public that Amendment 3 will produce the fairer outcomes
they prefer. They are even more objectionable in light of the fact that Amendment 3 will
repeal the office of the Nonpartisan State Demographer, the most significant check against
redistricting processes.
Persps. 51, 51, 58–61 (2014) (observing that, as recently as a decade or two ago, the
techniques used by political campaigns “to predict the tendencies of citizens appear
extremely rudimentary by current standards”).
67
See, e.g., AutoBound, https://citygategis.com/products/autobound (last visited Aug.
24, 2020).
34
CONCLUSION
For the foregoing reasons, Amici urge the Court to affirm the judgment of the circuit
court.
Respectfully submitted,
35
CERTIFICATE OF COMPLIANCE
Pursuant to Mo. R. Civ. Proc. 84.06(c), I hereby certify that this brief complies with
Mo. R. Civ. Proc. 55.03 and with the requirements and limitations set forth in Rule 84.06(b)
and the Local Rules of the Court. This brief contains 8,004 words according to the
36
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing brief
was filed in PDF format with the Missouri Court Electronic Filing System and served on
37