This article first appeared in the St. Louis Beacon, Jan. 12, 2012 - For U.S. Rep. Russ Carnahan, the good news was that Missouri's Supreme Court judges indicated during Thursday's hearing that they have concerns about the new redistricting map slated to go into effect with this fall's elections.
The bad news? Their concerns, at least those voiced in court, weren't about his decimated 3rd District.
Supreme Court Judge Ray Price was arguably the most outspoken as he directed the court's attention primarily to how the map -- approved by the General Assembly last spring -- redrew the Kansas City area's 5th District.
Price repeatedly took note of the territorial "tear drop'' carved out of the 5th, giving that piece of urban Jackson County to the neighboring, largely rural -- and more Republican -- 6th District.
Price asked the lawyers defending the new map if the redrawn 5th might violate the state constitution's requirement that the congressional districts be as "compact'' as possible.
Following that same path, Supreme Court Judge Laura Denvir Stith observed that courts contemplating whether to overturn such legislatively drawn maps usually consider "what would a reasonable person find?"
If a reasonable person looking at a map thinks its congressional boundaries aren't compact, she said, the courts might not be off-base in taking a similar stance.
But Stith and Price posed their queries in rhetorical terms and made clear they weren't necessarily reflecting their ultimate opinion.
Both presented a bipartisan backdrop. Stith was appointed by a Democratic governor, while Price -- the court's longest-serving judge -- was named to the bench by a Republican.
James Layton, the lead lawyer in the attorney general's office defending the map, repeatedly asserted that it would be wrong for the state Supreme Court to consider the politics behind the new boundaries.
Republican legislative leaders had been upfront that one goal of this new map was to protect the state's six GOP incumbents in the U.S. House, who played behind-the-scenes roles in crafting it. Layton argued that while the intent may have been partisan, there was nothing illegal about it.
Carnahan's Legal and Political Dilemma
Carnahan became a legislative target because Missouri is losing one of its nine congressional districts; the 2010 census determined that the state's growth since 2000 was slower than in some other states. Republicans got some cooperation from the state's two African American Democrats in the U.S. House -- William Lacy Clay of St. Louis, who represents the 1st, and Emanuel Cleaver, who represents the 5th District.
Both members of Congress helped win the support of two Democratic legislators apiece, who in turn provided the additional four votes necessary in the Missouri House to ensure that the General Assembly could override Gov. Jay Nixon's veto.
Carnahan's allies are hinting that he may challenge Clay this fall if the lawsuit fails; relations between the two have been strained since the override.
Carnahan's residence was placed in Clay's district. Clay and his allies -- including some national Democratic leaders -- want Carnahan to run in the GOP-leaning 2nd District, which takes in parts of St. Louis County.
Carnahan's decision will likely depend on the state Supreme Court.
During today's Supreme Court hearing, lawyer Gerald Greiman -- representing most of the plaintiffs contesting the map -- repeatedly emphasized that the chief legal issue was compactness, and the new map's perceived unfair treatment of the St. Louis metropolitan area.
The new 3rd District is largely made up of the current mid-Missouri 9th District, with a slice of Carnahan's current district. The new 3rd would stretch from Jefferson County to west of Jefferson City. Greiman told the high court that the new 3rd was shaped like "lobster claws'' and failed the compactness test.
Greiman told reporters afterward that the court's focus on the 5th didn't concern him. "Our case talks about the entire map,'' he said.
Greiman and co-counsel Jamie Barker Landes said that any decision to toss out the new 5th District's boundaries would likely affect all the congressional districts around the state. Landes represents Kansas City-area Republicans challenging the 5th District boundaries; Greiman's clients are largely Democrats in the St. Louis area.
Although the state Supreme Court often takes months to issue a ruling, several judges took note that time may be of the essence for this case. Candidate filing for all offices on the 2012 ballot, including Congress, begins Feb. 28.
Greiman and Landes said that their dream verdict would be for the high court to throw out the map and redraw a new one. But both conceded that the Supreme Court may prefer to give the matter back to the General Assembly and order legislators to draw a new map.
(Price signaled as much when he observed during today's arguments, "We are not a fact-finding court'' and would be ill-equipped to recraft an entire new map.)
Or the court may simply allow the new map to stand. Layton noted that no Missouri Supreme Court has ever tossed out a congressional redistricting map.
Three Judges Recuse Themselves
More ominous for Carnahan, who backs the suit, could be that three Democratic-appointed Supreme Court judges -- George Draper III, Mary Russell and Chief Justice Richard Teitelman -- have recused themselves from the case.
Substitute "special judges" from lower courts filled in for today's arguments and will be involved in the high court's ruling on the case. The special judges are:
- Special Judge John E. Parrish, sitting for Chief Justice Richard B. Teitelman;
- Special Judge Joseph M. Ellis, sitting for Judge Mary R. Russell;
- Special Judge Karen King Mitchell, sitting for Judge George W. Draper.
A court spokeswoman said Draper, Russell and Teitelman followed standard practice and did not give a reason for their recusals.
The upshot of the recusals is that some Democratic-appointed judges who had been assumed to sympathize with Carnahan's plight won't be involved in determining how it is resolved.
The St. Louis American, a newspaper that reports on the African-American community, took note of the recusals today in its latest Political Eye column, which speculated that the judges' actions could be a further sign that Missouri Democrats may be abandoning Carnahan and privately discouraging him from challenging Clay.
The potential significance of the suit was reflected by the presence of Missouri Attorney General Chris Koster, a Democrat, who sat in on the arguments and privately talked with his legal team during the recesses. U.S. Rep. Vicky Hartzler, R-Harrisonville, also had a representative monitoring the proceedings.
Latest Missouri Senate Map Called into Question
The Missouri Supreme Court also heard arguments Thursday on a separate redistricting suit challenging a judicial panel's new map for Missouri's 34 state Senate seats. The panel took over the task when a bipartisan commission appointed by Gov. Jay Nixon failed to reach an agreement.
At issue is that the judicial panel released a map on Nov. 30 and then issued a revised map several days later.
Lawyer David Brown, representing critics of the revised map, told the Supreme Court that the judicial panel violated the state constitution by issuing its revision. He emphasized that the constitution doesn't say that the panel has a right to submit more than one map.
But Jeremiah Morgan with the attorney general's office countered that the constitution doesn't specifically bar such an action either. He said that the revision was within the 90-day deadline set by the constitution for the judicial panel to submit a map.
Brown contended that the state Supreme Court should toss out both maps and base this fall's state Senate elections on the map in place since the 2000 census. The gubernatorial commission -- not the judicial panel -- should then be asked to try again to draw a new map, he argued.
The state Supreme Court judges signaled that they weren't too keen about that proposal. Judges noted that population shifts have taken place since 2000, so that the old boundary lines for the 34 Senate districts are no longer accurate reflections of the population.
Several judges indicated that they might knock out the revised map but let stand the original.
A key point of interest: Teitelman, Russell and Draper did not recuse themselves from the state Senate suit, and all were present for today's court argument in the case.