Missouri Amendment 3

July 8, 2020

SUMMARY

The Missouri Legislature approved SJR 38, now labeled Amendment 3, a measure intended to undo the 2018 reforms to partisan districting in Amendment 1 (Clean Missouri) passed by 62% of voters. Amendment 3 would return all redistricting power to partisan-oriented legislative committees, eliminating the position of nonpartisan state demographer. Furthermore, it is predicted to harm communities of color, partisan fairness, and legal recourse for unfair maps. Amendment 3 will go to voters for final approval in August or November.

DOES AMENDMENT 3 CHANGE WHO GETS COUNTED FOR REDISTRICTING? IF SO, WHAT IS THE IMPACT?

Possibly. The bill text of SJR38 removes the requirement that districts be based on “total” population, and Senator Dan Heageman, the bill’s sponsor, stated during Senate debates that this language was intended to shift the population basis for drawing legislative districts to “the people who are able to vote.” The switch from redistricting based on total population, a practice the Supreme Court unanimously upheld in 2016, to Citizen Voting-Age Population (CVAP) would disproportionately harm communities of color. According to the Brennan Center, over 90% of the people excluded from the CVAP base would be citizen children; because Missouri’s minority communities skew younger, they would “suffer disproportionate representational losses.” Local leaders, such as St. Louis Mayor Lyda Krewson, warned that discriminatory maps would lead to a decline in state funding for underrepresented communities, harming local economies, small businesses, and tax revenue.

HOW ELSE DOES AMENDMENT 3 AFFECT COMMUNITIES OF COLOR?

Amendment 3 removes the provision in Amendment 1 that explicitly protects “the equal opportunity of racial or language minorities to participate in the political process,” including through the formation of coalition districts that allow minority groups to combine voting strength. Without this guarantee, minority voters are left more vulnerable during the redistricting process.

WHAT HAPPENS TO PARTISAN FAIRNESS IN AMENDMENT 3?

While partisan fairness remains a factor in Amendment 3, it is heavily deprioritized, ranked last in a list of criteria ordered by priority. One important statistical measure of partisan fairness is the efficiency gap, or the difference between the two parties’ wasted votes, divided by the total number of votes cast. Wasted votes are defined as any vote for the losing party, and any vote for the winning party in excess of the 50% threshold. The higher the number, the more partisan bias the plan has. The creator of the efficiency gap, Nick Stephanopolus, proposed 8% as a threshold for presumptive unconstitutionality. Whereas Missouri’s constitution currently stipulates that this gap be “as close to zero as practicable,” Amendment 3 would allow for an efficiency gap of up to 15%. No state legislative map in the past 40 years has had an efficiency gap as high as 15%. Setting this upper bound in Missouri’s constitution tells lobbyists and politically appointees exactly how far they can go in creating extreme partisan gerrymanders with impunity.

HOW DOES AMENDMENT 3 MAKE LEGAL RECOURSE MORE DIFFICULT?

Amendment 3 adds new restrictions that may hinder the ability of citizens to challenge unfair maps in court. To have the legal standing required to bring a lawsuit, a Missouri voter must prove that they “sustain[ed] an individual injury by virtue of residing in a district that exhibits the alleged violation, and whose injury is remedied by a differently drawn district.” Such requirements place an increased hurdle before citizens who seek to remedy unconstitutional maps. Additionally, even if a legal challenge is successful, Amendment 3 places new limitations on what the court can do to fix unfair maps: “its judgment shall adjust only those districts, and only those parts of district boundaries, necessary to bring the map into compliance.” These provisions may make courts less effective in combatting legislative abuses in redistricting.