While most people are focused on their health and livelihoods amid the pandemic, Republican legislators in Missouri are working to overturn a voter-approved measure meant to make legislative redistricting more fair. If they succeed, their efforts could give state Republicans an electoral advantage by excluding immigrants and other residents who are not eligible to vote from district counts, possibly setting the stage for other states to follow suit.
On Wednesday, the Missouri House of Representatives convened ahead of a May 15 deadline to pass a bill that would reverse redistricting reforms enacted in 2018 by the “Clean Missouri” amendment, a ballot initiative that was approved with the support of 62% of voters. The measure was passed in the Senate in February by a vote of 22-9 and will now appear on the Nov. 3, 2020 ballot for voters to decide whether to adopt it or stick with the plan they voted for in 2018.
The Clean Missouri amendment gave the power to draw districts to a nonpartisan state demographer selected through a process involving the state auditor and the majority and minority leaders of the state Senate. The proposed districts, which the amendment says should be drawn in a manner that achieves partisan fairness and competitiveness, would be reviewed in public hearings before being adopted and could be revised if at least 70% of a politically-appointed commission vote in favor of changes. If no changes are agreed upon, the demographer’s districts would be adopted.
Under the bill passed on Wednesday, districts would be drawn by two politically-appointed commissions, one appointed by the Senate and one by the House, whose members would be appointed by the governor. If the commissions fail to agree to a redistricting plan, maps would be drawn by a panel of state appellate court judges who would be appointed by the state Supreme Court.
The House vote was 98-56, with 15 Republicans crossing the aisle to vote with most Democrats against the measure. One Democrat, Rep. Maria Chappelle-Nadal, voted for the bill.
“This is another attempt by the GOP-dominated Missouri legislature to disregard the mandate by voters in favor of their greedy self-interests. It’s nothing short of a power-grab,” Jamala Rogers, executive director of the Organization for Black Struggle, told Sludge. The organization helped to gather signatures for the Clean Missouri amendment and, according to a spokesperson, it is “prepared to fight—once again—to honor the will of voters by any means necessary. “
Also included in the bill is language that could change who is counted when districts are drawn. For decades, districts have been determined based on total population size, but the bill would add language to the state’s constitution stating that “districts…shall be drawn on the basis of one person, one vote,” which could be used to exclude people who are not eligible to vote, like children, non-citizens, and incarcerated individuals.
During the debate in the Senate, the bill’s sponsor, Sen. Dan Hegeman, said that the language was intended to shift the population counted for districts to “the people who are able to vote.”
The change could “set the stage for the legislature to attempt to draw districts in 2021 on the basis of eligible voters or citizens (instead of people as is the current practice)—setting up a fight at SCOTUS,” the Brennan Center’s Michael Li wrote on Twitter when the language was added to the bill by amendment in April 2019.
The language follows a 2016 U.S. Supreme Court case that upheld the constitutionality of using population counts for determining congressional districts, but explicitly did not resolve whether states could draw districts using numbers of eligible voters rather than population. The plaintiffs in the case argued in their brief that the “one-person, one-vote principle protects the rights of voters to an equal vote [emphasis added].” The case was organized by American Enterprise Institute fellow and anti-affirmative action activist Edward Blum.
Harvard political scientist Carl Klarner analyzed the potential impact of using eligible voters for redistricting rather than total population numbers in a 2015 study and found that Republican politicians would benefit. The percentage of Missouri State Senate seats held by Democrats could be reduced from 26.5 percent to 26 percent when excluding non-citizens from district counts and from 26.3 percent to 26 percent when excluding citizen children, Klarner found. In some state chambers, Klarner found that excluding these groups could reduce Democratic seats by as much as 3%.
Using only eligible voters for determining districts would disproportionately disenfranchise communities of color, according to testimony from the Brennan Center’s Yurij Rudensky and Ethan Herenstein. “Over 90 percent of the people excluded from Missouri’s apportionment base under [citizen voting age population] apportionment would be citizen children,” Ruensky and Herenstein state. “Missouri’s communities of color skew younger than their white counterparts. As a result, these minority communities would suffer disproportionate representational losses if citizen children were excluded from the apportionment base.”
At the last annual meeting of the American Legislative Exchange Council (ALEC), which helps corporate lobbyists collaborate with legislators, the influential voter I.D. proponent Hans von Spakovsky, a former member of President Trump’s election fraud commission, urged attendees to work towards using citizen counts rather than full population counts for redistricting. “All of you need to seriously consider switching to using citizen population to do redistricting,” Spakovsky said, according to Slate, which obtained an audio recording of the meeting. Hegeman has recently been active with ALEC efforts, signing a letter from ALEC Action in support of confirming Brett Kavanaugh to the Supreme Court. The largest donor to the campaign committees set up to oppose the Clean Missouri amendment in 2018, Show-Me Institute founder Rex Sinquefield, is a major ALEC funder.
Republican redistricting strategist Thomas Hoffler wrote in a 2015 report that adding a citizenship question to the census would produce data that would be needed to draw districts based on citizenship rather than population, which, he said, would be “advantageous to Republicans and Non-Hispanic Whites.”
Other provisions in the Clean Missouri amendment would also be tweaked by the bill. The amendment’s $5 limit on the value of gifts that lobbyists can give to legislators would be replaced with a total ban on lobbyist gifts, and campaign contribution limits would be reduced from $2,500 to $2,400. Including these minor changes make it possible for the ballot language to say that the bill eliminates lobbyist gifts and lowers campaign contribution limits, which voters will likely view favorably.
“The politicians pushing the deceptive Dirty Missouri amendment have ignored their constituents’ mandate for fair maps,” the Clean Missouri campaign said in a statement, referring to the bill passed by the legislature. “If this amendment survives legal challenges and appears on the ballot later this year, voters will once against deliver a clear mandate for fair maps — by rejecting the politicians’ gerrymandering scheme.”