In many respects, Thursday’s U.S. Supreme Court decision taking partisan gerrymandering cases out of the purview of federal courts has a mixed impact for Missouri.
On the one hand, the court’s majority opinion didn’t preclude states from adopting rules to curb maps that help one party or the other. It specifically mentioned a successful ballot initiative known as Clean Missouri that created a new redistricting system aimed at state House and Senate maps that emphasize partisan fairness.
But the decision could make it significantly harder to challenge Missouri’s congressional map for being skewed for a political party. Missouri’s Legislature and governor are responsible for coming up with congressional maps, where partisan gerrymandering is not specifically prohibited. Clean Missouri did not affect that process.
Sean Soendker Nicholson helped pass Clean Missouri last year. It turned over much of the power to draw House and Senate districts to an appointed demographer, who would have to draw maps that emphasize, among other things, competitiveness and partisan fairness.
U.S. Chief Justice John Roberts wrote that just because federal courts won’t address partisan gerrymandering doesn't mean the court “neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void.” Nicholson said that means if a state legislative map runs afoul of the rules laid out in Clean Missouri, someone could sue in a state court.
But replicating a Clean Missouri-like system in every state may not be possible. Nicholson said that while Missouri allows citizen-led ballot initiatives to change laws or the constitution, other states either make that process very difficult or basically impossible.
“So I think that’s why there was optimism and hope that the Supreme Court would strike down the partisan gerrymanders in Maryland, where Democrats clearly passed a gerrymander, and in North Carolina, where Republicans clearly passed a gerrymander,” Nicholson said. “There was optimism that the Supreme Court would say, ‘Hey, those are totally out of bounds.’ And neither one of those are states where citizens can act through the initiative process.”
Roberts’ decision also stated that the framers of the constitution “gave Congress the power to do something about partisan gerrymandering in the Elections Clause.” Nicholson, though, said he isn’t optimistic there will be federal legislation dealing with that issue when it comes to congressional maps. Any changes to the Missouri congressional redistricting system would either have to pass through a GOP-controlled Legislature or require a constitutional amendment that needs to be approved through a statewide vote.
“I don’t have a lot of optimism that the state Legislature or Congress is going to act on this in the short term,” Nicholson said. “But I think that’s where we’re going to have to as a nation come to terms with what a disaster partisan gerrymandering is across the country. Democrats do it when left to their own devices. Republicans do it when left to their own devices. And it’s an American practice that needs to end.”
Some Missouri lawmakers have sought to undo much of the Clean Missouri state legislative redistricting system — which Justice Elena Kagan alluded to in her opinion. She wrote “before the demographer had drawn a single line, members of the state legislature had introduced a bill to start undoing the change."
“I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites,” Kagan wrote.
Voters, not legislators, would have the final say over whether the new state legislative redistricting system stays in place.
The buck stops here
One big consequence for states without specific prohibitions on partisan gerrymandering is it could place a lot more pressure on governors to curb maps that benefit a political party.
That may be a tough sell, especially in states like Missouri and Illinois where one party controls the state legislature and governor’s office. While the Missouri governorship will be up for grabs in 2020, Democratic Gov. J.B. Pritzker will get a chance to sign off on Illinois’ congressional and state legislative plans.
“I will not sign a bill that is gerrymandered,” Pritzker said last year. “I have been for independent maps for a long time now. I really believe that we have to have more fair elections.”
While Republicans controlled the redistricting process in many states after the 2010 elections, Democrats ended up sending then-Illinois Gov. Pat Quinn maps that benefited their party. Pritzker, though, said last year that he would even stand up to people like powerful Illinois House Speaker Mike Madigan if they pushed a gerrymandered map to his desk.
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