Pippens v. Ashcroft

• Decision Date: 31 August 2020
• Docket Number: WD 83962
• Citation: 606 S.W.3d 689
• Parties: Barbara PIPPENS, John Bohney, Cheryl Hibbeler, Rebecca Shaw, Bob Minor, James Harmon, Gene Davison, and Pat McBride, Respondents, v. John R. ASHCROFT, in his official capacity as Missouri Secretary of State, Dave Schatz, in his official capacity as State Senator and President Pro Tem of the Senate, Elijah Haahr, in his official capacity as State Representative and Speaker of the House, and Daniel Hegeman, in his official capacity as State Senator and sponsor of Senate Resolution 38, Appellants.
• Court: Missouri Court of Appeals

606 S.W.3d 689

Barbara PIPPENS, John Bohney, Cheryl Hibbeler, Rebecca Shaw, Bob Minor, James Harmon, Gene Davison, and Pat McBride, Respondents,

v.John R. ASHCROFT, in his official capacity as Missouri Secretary of State, Dave Schatz, in his official capacity as State Senator and President Pro Tem of the Senate, Elijah Haahr, in his official capacity as State Representative and Speaker of the House, and Daniel Hegeman, in his official capacity as State Senator and sponsor of Senate Resolution 38, Appellants.

WD 83962

Missouri Court of Appeals, Western District.

Filed: August 31, 2020

D. John Sauer, Jeremiah Morgan, Jason K. Lewis, Justin D. Smith, Jefferson City for appellants.

Charles W. Hatfield, Alixandra Cossette, Alexander C. Barrett, Jefferson City, for respondents.

Edward D. Greim, Kansas City, for Amici Curiae Missouri Chamber of Commerce and Industry et al. in support of appellants.

Sharon Geuea Jones, Columbia, Alicia Bannon, Michael Li, Yurij Rudensky, Robert A. Atkins, Sidney S. Rosdeitcher, Jonathan Silberstein-Loeb, Melina Meneguin Layerenza, Ethan C. Stern, New York, NY, for Amici Curiae National and Missouri-Baed Civil Rights Organizations in support of respondents.

Manasi Venkatesh, Washington, D.C., Brian A. Sutherland, San Francisco, CA, M. Patrick Yingling, Chicago, IL for Amici Curiae Former Missouri Lawmakers in support of respondents.

Before Special Division: Lisa White Hardwick, P.J., and Alok Ahuja and Karen King Mitchell, JJ.

Alok Ahuja, Judge

In its 2020 regular session the General Assembly passed Senate Joint Resolution 38 ("SJR 38"), which proposes amendments to the Missouri Constitution concerning legislative redistricting, campaign contribution limits, and lobbyist gifts. The measure will appear on the November 3, 2020 general election ballot as Amendment No. 3.

A group of eight Missouri citizens (the "Challengers") filed suit against the Secretary of State and other State officials in the Circuit Court of Cole County to challenge the official summary statement for SJR 38. The circuit court agreed with the Challengers that each of the three bullet points in the official summary statement was unfair and insufficient; the court accordingly rewrote the summary statement, and certified to the Secretary of State an alternative statement for inclusion on the ballot.

The Secretary of State and the other defendants appeal. We affirm in part and reverse in part. While we agree with the circuit court that certain aspects of the official summary statement are unfair or insufficient and require revision, we certify to the Secretary of State an alternative summary statement which makes more limited revisions than those ordered by the circuit court.

Factual Background

In the general election held on November 6, 2018, Missouri voters approved Constitutional Amendment No. 1, which had been proposed by initiative petition. Amendment No. 1 made multiple revisions to Article III of the Missouri Constitution, the article establishing the legislative department.

We rejected pre-election challenges to the validity of Amendment No. 1 in Ritter v. Ashcroft , 561 S.W.3d 74 (Mo. App. W.D. 2018). Ritter explained that Amendment No. 1 "prohibit[s] legislators and legislative employees from accepting gifts valued at more than $5.00 from paid lobbyists," and "prohibit[s] candidates for the Senate from accepting campaign contributions of more than $2,500.00 in any one election cycle, and prohibit[s] House candidates from accepting contributions of more than $2,000.00." Id. at 80 ; see Mo. Const. Art. III, § 2(b), (c).

In addition, we explained that Amendment No. 1 "substantially modif[ies] the procedure for apportioning House and Senate Districts following a decennial census." Ritter , 561 S.W.3d at 80. As we described in Ritter ,

[Amendment No. 1] establish[es] a new position known as the "non-partisan state demographer," to be selected through an application process overseen by the State Auditor, and with the participation of the majority and minority leaders of the Senate. [See Mo. Const. Art. III, § 3(a), (b).] The non-partisan state demographer is charged with preparing proposed legislative re-districting plans and maps following the decennial census. [Id. §§ 3(c), 7(a) ]. In preparing those redistricting proposals, the demographer is charged with giving the districts "a total population as nearly equal as practicable to the ideal population for such districts," and with complying with the requirements of the United States Constitution and federal laws, including the Voting Rights Act of 1965. [Id. § 3(c)(1)a, b.] The demographer is also directed that

Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. Partisan fairness means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency. Competitiveness means that parties’ legislative representation shall be substantially and similarly responsive to shifts in the electorate's preferences.

[Id. § 3(c) ]. [Amendment No. 1] also directs the demographer to consider geographic contiguity, the boundaries of existing political subdivisions, and the compactness of the proposed districts. These considerations, however, are expressly subordinated to consideration of equal population, compliance with federal law, and partisan fairness and competitiveness. [Id. § 3(c)(1)c, d, e.]

[Amendment No. 1] provide[s] that, within six months following the release of the decennial census results, the non-partisan state demographer shall file with the Secretary of State "a tentative plan of apportionment and map of the proposed districts, as well as all demographic and partisan data used in the creation of the plan and map." [Id. § 3(c)(3).] [Amendment No. 1] largely retains the procedure found in the current Missouri Constitution for the Governor to select House and Senate reapportionment commissions with ... input [from the two major political parties]. [See id. § 3(c)(2).] Under [Amendment No. 1], the reapportionment commissions are charged with holding at least three public hearings concerning the demographer's proposed apportionment plan. [Id. §§ 3(c)(3), 7(c).] The commissions may make modifications to the demographer's proposed plan and map, but only "by a vote of at least seven-tenths of the commissioners." [Id. ] [Amendment No. 1] provides that, "[i]f no changes are made or approved as provided for in this subsection, the tentative plan of apportionment and map of proposed districts shall become final." [Id. ]

Ritter , 561 S.W.3d at 80-81.

Amendment No. 1's creation of the post of Nonpartisan State Demographer was mentioned by the Supreme Court of the United States in its decision finding that partisan gerrymandering of State legislative districts does not present a justiciable controversy under federal law. Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). The Court observed that, while federal law provided no remedy, "[t]he States ... are actively addressing the issue [of partisan influence over redistricting] on a number of fronts." Id. at 2507. After noting that a number of States had established independent redistricting commissions, the Court stated that "Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position – state demographer – to draw state legislative district lines." Id. (citing Mo. Const. Art. III, § 3 ). The introduction of "partisan fairness" and "competitiveness" criteria, and their placement in the highest-priority category, is also an apparently novel feature of the new redistricting process put in place by Amendment No. 1.¹

In its 2020 regular session, the General Assembly passed Senate Substitute No. 3 for Senate Joint Resolution No. 38 ("SJR 38"). SJR 38 submits to voters a proposed constitutional amendment which would modify the features of Amendment No. 1 described above. While Amendment No. 1 prohibits legislators and their staffs from accepting gifts from paid lobbyists with a value in excess of $5.00, SJR 38 deletes the dollar limitation, and would thereby prohibit gifts from paid lobbyists entirely. SJR 38 also reduces the contribution limits in campaigns for state senator by $100.00, from $2,500.00 to $2,400.00 (it does not alter the $2,000.00 contribution limit in races for the state House of Representatives). SJR 38 also proposes to delete the cost-of-living adjustment to the campaign contribution limits currently found in Article III, § 2(c).

SJR 38's most significant provisions modify the process for reapportioning state legislative districts.

SJR 38 renames the existing House and Senate reapportionment commissions as the "house independent bipartisan citizens commission" and the "senate independent bipartisan citizens commission." Under the existing Constitution, the members of the House reapportionment commission are appointed by the Governor, from lists of nominees submitted by the two major political parties’ congressional district committees, while members of the Senate reapportionment commission are appointed by the Governor from lists of nominees submitted by the parties’ State committees. See Article III, § 3(c)(2), 7(b). SJR 38 proposes to modify this selection process so that the parties’ State committees, as well as their congressional district committees, will both make nominations to each of the redistricting commissions. As a result of the additional nominations coming from the different party committees, the membership of the House redistricting commission would increase from sixteen to twenty members, and the Senate commission would expand from ten to twenty members. Under Article III, § 7(b), the parties’ State committees currently nominate twenty candidates to fill all ten spots on the Senate reapportionment commission. Under SJR 38, the influence of the parties’ State committees would be diminished: the State committees would...