Senate Joint Resolution 38 — on the ballot as Amendment 3 — is a legislatively proposed ballot measure that would repeal parts of a new redistricting measure that 62% of Missouri voters approved two years ago.
Since then, lawmakers have sought to replace the changes before the decennial census count, when new district lines are drawn.
The 2018 “Clean Missouri” measure focused on ethics reform in Jefferson City; changing access to public records, limiting lobbying power, reducing campaign finance contributions and creating a new redistricting process that would empower a state demographer to play a key role in the process.
If passed, the Amendment 3 proposal on this year’s ballot would eliminate the role of a “nonpartisan state demographer” and would change redistricting metrics for drawing maps.
The census, apportionment and redistricting are interrelated activities that affect representation. Apportionment, or reapportionment, is the process of deciding how many seats a state will have when its population changes.
Redistricting is the process of deciding how areas will be divided into sections or districts based on the number of seats a state has.
How districts are drawn can affect which party’s candidates are likely to win elections.
Here’s the current redistricting process under Clean Missouri:
- The state auditor would give a list of applicants for the demographer position to the majority and minority leaders in the Senate for approval.
- If the Senate members can’t come to an agreement, the candidate would be picked from among the finalists through a final lottery.
- The demographer chosen to draw the map can’t have been an elected official in the four years before or after being appointed to the position.
Here’s the proposed redistricting process under Amendment 3:
- The governor would appoint nominees proposed by House and Senate party members to two bipartisan commissions tasked to draw maps, which reflects the process in place prior to Clean Missouri.
- If the bipartisan commissions deadlock over a map, a panel of six appellate judges must draw the lines.
- Redistricting plans and maps would be submitted to the Missouri Secretary of State, subject to public hearings.
What’s the difference?
The main differences between the two amendments are the processes used to draw districts and what outcomes are permissible surrounding protections and criteria related to fairness and other measurements.
When Clean Missouri passed, the state became the first to use a mathematical formula to try to ensure “partisan fairness and competitiveness,” and part of the key changes involves a ranked list of priorities when redrawing district boundaries.
Here’s what the criteria looks like:
- Districts should still be equal in population.
- Districts should not marginalize minority communities in the political process.
- The overall map of districts should promote “partisan fairness and competitiveness.”
- Districts should be contiguous.
- Districts should follow political subdivisions as much as possible (county lines, city lines, etc.).
- Districts should be “compact in form.”
Amendment 3 would consign partisan fairness and competitiveness to the bottom of the criteria list, prioritizing things such as compact districts that keep communities together.
Yurij Rudensky, an expert on state legislature redistricting for the New York University Law School’s Brennan Center for Justice, said the process should be about splitting the state up in ways that make sense for constituents, rather than political parties and nonpolitical forces.
“What I look for is whether there are measures taken to ensure that whoever it is drawing districts is at arm’s length from political interference and influence,” he said, “and then secondarily, whether it’s open and transparent and if the public can oversee the process and be confident that there’s no self-dealing going on behind the scenes.”
Currently, the state demographer is required to calculate the average result of the last three presidential, gubernatorial and senatorial elections to get an idea of the state’s partisan makeup by comparing the ratio of the votes a party receives with the ratio of seats it wins in statewide elections.
Along with this “partisan fairness index,” the demographer would also have to consider the amount of wasted votes to calculate an “efficiency gap” to determine whether either party enjoyed a systematic advantage in turning votes into seats.
Wasted votes are those cast for a candidate in excess of the 50% threshold needed for victory. The disparity in those wasted votes is the efficiency gap, measuring how equally — or unequally — wasted votes are distributed among the competing parties.
Amendment 1 says the difference between the wasted votes divided by the total votes cast should be “as close to zero as practicable,” though the newly proposed amendment would change the efficiency gap requirement for legislative maps and allow the threshold to be as high as 15%.
Rudensky noted that because of this, the partisan fairness provision is “virtually meaningless.”
“A 15% partisan fairness threshold means that a map can be so disconnected from how Missourians are voting on a statewide basis that the map can be completely unrepresentative of voter preference in Missouri,” he said.
“The bar is set so high that the most extreme gerrymandered — essentially of all time — would be deemed fair from a partisan-balanced standpoint,” he added.
The idea of a threshold as “close to zero as practicable” is that this would help fight gerrymandering because planners couldn’t pack a few districts with one party’s voters, which would leave them greatly underrepresented in others.
Currently, the existing bipartisan commissions selected by the governor still have an opportunity to review the demographer’s map. However, in order to make any changes, at least 70% of either commission needs to come to agreement — 12 members of the House committee or seven members of the Senate committee.
If the bipartisan commissions don’t make any changes, the demographer’s map is final.
The data and calculation the demographer uses to make the maps also has to be turned over to the Secretary of State’s office, subject to be requested via the Sunshine Law. Citizens will then have the opportunity to challenge the public data and maps in court if they don’t meet the criteria listed in the amendment.
Under the new proposal, a panel of six appellate judges must draw the lines if the bipartisan commissions deadlock over a map. Redistricting plans and maps would be submitted to the Missouri secretary of state, subject to public hearings.
Issues of Language
As originally written by the Republican-led legislature, the ballot summary for Amendment 3 didn’t mention the elimination of the nonpartisan demographer, which was a central component to the redistricting measure voters approved in 2018.
Petition circulators for Clean Missouri filed suit, arguing that the ballot title of Amendment 3 was misleading.
In August, Cole County Circuit Judge Patricia Joyce ruled the summary of the amendment was “insufficient and unfair,” adding that any changes the amendment makes to the Constitution “pale in comparison to the scope and magnitude of undoing a recent voter mandate to change Missouri’s legislative redistricting rules.”
She said the ‘central purpose’ or ‘primary objective’ of (Amendment 3) is to effectively repeal Amendment 1.”
That ruling was appealed, and the Western District Appeals Court ruled that the original description “fails to acknowledge what SJR 38 would actually do — substantially modify, and reorder, the redistricting criteria approved by voters in the November 2018 general election.”
Opponents of Amendment 1 have argued there is a danger in attempting to make the legislature reflect the total partisan leanings of the state.
Tina Goodrick lost her bid for election to the Missouri House of Representatives in District 9 during the recent Republican primary after running in 2018 for the same seat. Speaking at a Sept. 30 forum hosted by the League of Women Voters, Goodrick argued that communities would likely need to be spread among several districts to achieve balance under Clean Missouri’s rules, leading to the creation of oddly-shaped districts.
“I see a future of having our legislators not be from the area where we live, but clear over in Kansas City, and whatnot,” she said. “It will be drawn way out, far away from our district and the people who will be representing us don’t have any idea what we need for our district. How are they going to feel if they’re drawn in with the farmland?”
Sean Nicholson, campaign manager of the push to enact Clean Missouri in 2018 and who is now leading the campaign to defeat Amendment 3, said that the new proposal is “about creating a redistricting system where lobbyists and political operatives can draw lines to protect their favorite incumbents in safe districts where they can’t be held accountable by the voters.”
“The folks who were behind Amendment 3 — the politicians and lobbyists who put it together — know you won’t like what’s in fine print, so it is crafted to trick voters and deceive you into thinking that it’s something that it’s not,” he said.
Goodrick said the language in the original Clean Missouri amendment was just as confusing.
“Many people thought that they were voting to make things environmentally friendly or clean up the street, or whatever,” she said. “I mean seriously, they were confused.”
Rudensky said the demographer has the ability to group communities with similar policy interests, rather than grouping communities that secure wins for a certain party. Political preferences could shift while key issues remain the same, making a state’s legislature more responsive.
“The entire idea of a nonpartisan demographer is to understand where Missouri’s relevant communities of interest are,” he said. “With Clean, there is transparency, there are bipartisan checks and balances in place.”
Independent redistricting isn’t a Democrat versus Republican issue, he noted, but rather a ‘people versus political interest issue.’
“They feel disconnected and alienate, or they don’t understand the importance of voting. It really turns into a downward spiral that impacts all aspects of our democracy.”