Clara Faatz v. John Ashcroft, Missouri Secretary of State

• Court: Supreme Court of Missouri
• Decided: February 14, 2024
• Docket: SC100277
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc CLARA FAATZ, et al., ) Opinion issued February 14, 2024 ) Appellants, ) ) v. ) No. SC100277 ) JOHN ASHCROFT, MISSOURI ) SECRETARY OF STATE, ) ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E. Beetem, Judge

Clara Faatz and William Caldwell (“Appellants”) appeal the circuit court’s

judgment on their declaratory judgment action in favor of John Ashcroft, in his official

capacity as Secretary of State of Missouri (the “Secretary”). On appeal, Appellants claim

the circuit court erred by finding the Missouri Senate redistricting plan (“Senate Map”)

prepared by the judicial redistricting commission (“Judicial Commission”) met the

constitutional requirements for redistricting. This Court finds the circuit court did not err

in finding the Senate Map constitutional. Accordingly, the circuit court’s judgment is

affirmed. Legal Background

The Missouri Constitution allows for 34 members of the Missouri Senate who are

elected by qualified voters of their senatorial districts. Mo. Const. art. III, sec. 5. The

34 senatorial districts are established and apportioned by the procedures fixed in the

constitution. Id. Missouri redraws its state legislative districts every 10 years, following

each United States census. Mo. Const. art. III, sec. 3(c). The constitution requires the

governor to appoint a senate independent bipartisan citizens commission tasked with

drawing a redistricting map. Mo. Const. art. III, sec. 7. If the citizens commission fails

to submit an agreed upon map to the Secretary of State within six months of the citizens

commission’s appointment, the constitution requires a judicial redistricting commission,

consisting of six appellate court judges appointed by this Court, to take over the task of

creating a redistricting map. Mo. Const. art. III, sec. 7(f). The judicial redistricting

commission must sign and file a redistricting plan and map, voted on by a majority of the

judicial redistricting commission, with the Secretary of State within 90 days of the

citizens commission’s discharge. Id.

The Missouri Constitution provides criteria the commissions must follow in

creating a redistricting map. Article III, section 3 provides the parameters for

redistricting the state House, and section 7 of article III incorporates the methods set forth

in section 3 to redistricting the state Senate. Article III, section 3 provides multiple

relevant factors to redistricting and directs use of “the following methods, listed in order

of priority”:

2 (1) Districts shall be as nearly equal as practicable in population, and shall be drawn on the basis of one person, one vote. Districts are as nearly equal as practicable in population if no district deviates by more than one percent from the ideal population of the district, as measured by dividing the number of districts into the statewide population data being used, except that a district may deviate by up to three percent if necessary to follow political subdivision lines consistent with subdivision (4) of this subsection [“equal population”];

(2) Districts shall be established in a manner so as to comply with all requirements of the United States Constitution and applicable federal laws, including, but not limited to, the Voting Rights Act of 1965 (as amended). The following principles shall take precedence over any other part of this constitution: no district shall be drawn in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color; and no district shall be drawn such that members of any community of citizens protected by the preceding clause have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice [“federal constitutional and statutory criteria”];

(3) Subject to the requirements of subdivisions (1) and (2) of this subsection, districts shall be composed of contiguous territory as compact as may be. Areas which meet only at the points of adjoining corners are not contiguous. In general, compact districts are those which are square, rectangular, or hexagonal in shape to the extent permitted by natural or political boundaries [“compactness”];

(4) To the extent consistent with subdivisions (1) to (3) of this subsection, communities shall be preserved. Districts shall satisfy this requirement if district lines follow political subdivision lines to the extent possible, using the following criteria, in order of priority. First, each county shall wholly contain as many districts as its population allows. Second, if a county wholly contains one or more districts, the remaining population shall be wholly joined in a single district made up of population from outside the county. If a county does not wholly contain a district, then no more than two segments of a county shall be combined with an adjoining county. Third, split counties and county segments, defined as any part of the county that is in a district not wholly within that county, shall each be as few as possible. Fourth, as few municipal lines shall be crossed as possible [“community preservation”];

(5) Districts shall be drawn in a manner that achieves both partisan fairness and, secondarily, competitiveness, but the standards established by subdivisions (1) to (4) of this subsection shall take precedence over partisan

3 fairness and 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 [“partisan fairness/competitiveness”].

Although the constitution mandates the consideration of these methods in order of

priority, the constitution’s goals “cannot be achieved with absolute precision.” Johnson

v. State, 366 S.W.3d 11, 25 (Mo. banc 2012) (quoting Pearson v. Koster, 359 S.W.3d 35,

39 (Mo. banc 2012) (Pearson I)). Put simply, “there is no perfect map”; therefore, the

constitution “does not require absolute perfection in a map[.]” Id. Given “[t]hese maps

could be drawn in multiple ways, all of which might meet the constitutional

requirements[,]” this Court has recognized that “[t]hese decisions are political in nature

and best left to political leaders, not judges.” Pearson I, 359 S.W.3d at 39. This Court

has thus held it “fundamental” that “redistricting is predominately a political question.”

Id.; c.f. Baker v. Carr, 369 U.S. 186, 217 (1962) (holding political questions involve “the

impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion”).

Factual and Procedural Background

Following the 2020 census, the Governor appointed a citizens commission to

develop a new Senate redistricting map pursuant to article III, section 7 of the Missouri

Constitution. The citizens commission failed to agree on a map to file with the Secretary.

On January 11, 2022, this Court appointed a Judicial Commission to draw a new Senate

map, pursuant to article III, section 7 of the Missouri Constitution. In March 2022, the

Judicial Commission released the Senate Map at issue in this appeal.

4 Appellants sued the Secretary and the Judicial Commission to challenge the

Senate Map. Appellants sought a declaration that the Senate Map violated the

community preservation requirement in article III, section 3(b)(4) of the Missouri

Constitution by splitting Buchanan County into two separate senatorial districts and the

City of Hazelwood into two separate senatorial districts. Appellants also sought to enjoin

the Secretary from using the Senate Map for “any purpose.”

The circuit court dismissed the Judicial Commission from the action and held a

bench trial on Appellants’ claims against the Secretary. Following the trial, the circuit

court entered judgment for the Secretary, finding the Senate Map constitutional and,

alternatively, that Appellants failed to carry their burden to prove the Senate Map

unconstitutional.

Appellants now appeal, requesting this Court reverse the circuit court’s judgment

and, pursuant to article III, section 7(i) of the Missouri Constitution, remand for the

circuit court to enter a judgment adjusting those districts necessary to bring the Senate

Map into constitutional compliance.

Jurisdiction

This Court has “exclusive appellate jurisdiction” over “[a]ny action expressly or

implicitly alleging that a redistricting plan violates [the Missouri] Constitution.” Mo.

Const. art. III, sec. 7(i). Appellants expressly allege the Senate Map violates the

constitution. This Court, therefore, has jurisdiction.

5 Standing

To challenge a redistricting map, “[o]nly an eligible Missouri voter who sustains

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, shall have standing.” Id.

The Senate Map splits Buchanan County between districts 12 and 34 and splits

Hazelwood between districts 13 and 14. Appellant Caldwell is a Missouri voter residing

in senate district 12 (Buchanan County). Appellant Faatz is a Missouri voter residing in

senate district 13 (Hazelwood). Appellants allege splitting Buchanan County between

districts 12 and 34 and splitting the Hazelwood between districts 13 and 14 violates the

community preservation requirement of the Missouri Constitution under article III,

section 3(b)(4). Each Appellant lives in a district in which a community has been split in

alleged violation of the Missouri Constitution and, therefore, has standing to challenge

the Senate Map.

Standard of Review

“In appeals from a court-tried civil case, the trial court’s judgment will be affirmed

unless there is no substantial evidence to support it, it is against the weight of the

evidence, or it erroneously declares or applies the law.” Johnson, 366 S.W.3d at 18

(internal quotation omitted). “In reviewing a particular issue that is contested, the nature

of the appellate court’s review is directed by whether the matter contested is a question of

fact or law.” Id. (internal quotation omitted). “When the facts relevant to an issue are

contested, the reviewing court defers to the trial court’s assessment of the evidence” and

“defers to the trial court’s determination of credibility.” Id. at 18-19 (internal quotation

6 omitted). “[W]hen the evidence is uncontested … no deference is given to the trial

court’s findings.” Id. at 19 (internal quotation omitted).

The constitution provides courts limited power over challenges to a redistricting

plan:

Any action expressly or implicitly alleging that a redistricting plan violates this Constitution, federal law, or the United States Constitution shall be filed in the circuit court of Cole County and shall name the body that approved the challenged redistricting plan as a defendant. … If the court renders a judgment in which it finds that a completed redistricting plan exhibits the alleged violation, its judgment shall adjust only those districts, and only those parts of district boundaries, necessary to bring the map into compliance.

Mo. Const. art. III, sec. 7(i). Pursuant to the constitution, this Court’s “single function”

in hearing a redistricting challenge on appeal “is to determine whether the constitutional

[or federal law] requirements … were followed[.]” State ex rel. Teichman v. Carnahan,

357 S.W.3d 601, 603 (Mo. banc 2012). This Court will not interfere with the political

process by finding a redistricting map unconstitutional “unless the plaintiff proves that it

clearly and undoubtedly contravenes the constitution.” Johnson, 366 S.W.3d at 20

(alteration omitted) (internal quotation omitted). The Court’s role is further limited to

reviewing the constitutionality of the particular senate districts alleged to exhibit a

violation. Mo. Const. art. III, sec. 7(i). Finally, the Court asks only if the constitutional

requirements were followed, not whether a redistricting commission acted reasonably or

prudently. Teichman, 357 S.W.3d at 603; Pearson v. Koster, 367 S.W.3d 36, 46 (Mo.

banc 2012) (Pearson II).

“In a case challenging a reapportionment plan, this Court reviews the plan under

identical standards for review of a statute[.]” Johnson 366 S.W.3d at 19. The plan “is

7 assumed to be constitutional and will not be held unconstitutional unless the plaintiff

proves that it clearly and undoubtedly contravenes the constitution.” Id. at 20 (alteration

omitted) (internal quotation omitted). “This Court will uphold the plan unless it plainly

and palpably affronts fundamental law embodied in the constitution, and doubts will be

resolved in favor of the constitutionality of the plan.” Id. (internal quotation omitted).

Analysis

Appellants raise eight points on appeal. In Point I, they contend the circuit court

erred by applying a reasonableness standard to the map drawing process. Appellants

argue in Point II the circuit court erred by declining to rely on article III, section 3(b)(1)

in entering its judgment. Appellants argue in Points III and IV that the circuit court erred

by failing to follow the plain language of the constitution in finding compactness takes

priority over community preservation and a mathematical calculation can be an

appropriate means to determine compactness. In Points V and VI, Appellants take issue

with the circuit court’s finding that Appellants failed to meet their burden of proving

deviations in the Senate Map were not due to consideration of recognized factors.

Finally, Appellants’ arguments in Points VII and VIII are related to the Judicial

Commission’s dismissal from the lawsuit and the circuit court’s quashing of discovery on

the Judicial Commission.

Point I: Appellants did not preserve a challenge to the judgment’s language

Appellants argue the circuit court erred in applying a “reasonableness” standard to

determine whether the Senate Map violated the constitution. Appellants contend the

circuit court may apply only the objective standard contained in the constitution itself,

8 i.e., objectively determining whether the five methods of article III, section 3(b) are

satisfied.

Rule 78.07(c) provides: “In all cases, allegations of error relating to the form or

language of the judgment … must be raised in a motion to amend the judgment in order

to be preserved for appellate review.” Appellants challenge the language of the

judgment, specifically the circuit court’s use of “reasonableness,” but did not file a

motion to amend the judgment. Accordingly, this point is not preserved for appellate

review. Point I is denied.

Point II: Appellants failed to preserve an equal population claim

Appellants argue the Senate Map violated article III, section 3(b)(1), equal

population, because the populations of three of the districts containing Buchanan County

and Hazelwood deviate from the ideal population by more than one percent, which,

according to Appellants, is permissible only to preserve political subdivisions.

Appellants argue this point was preserved through their amended petition. 1 Appellants

1 Appellants argue “[t]he fact that [they] did not specifically say their action was brought under one of the several subsections of Article III, Section 3 requiring preservation of communities did not waive the legal theory.” Instead, Appellants contend “[a] court should ignore what [they] call their theory and instead look at the pled facts.” Appellants justify this assertion by citing Thomas v. City of Kansas City, 92 S.W.3d 92, 96 (Mo. App. 2002), a case that includes no constitutional claims. For more than 100 years, this Court has held constitutional claims not raised at the first opportunity are not preserved for appellate review. Barber Asphalt Pav. Co. v. Ridge, 68 S.W. 1043, 1046 (Mo. 1902); Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108, 1110 (Mo. 1908); Miller v. Connor, 157 S.W. 81, 83 (Mo. 1913). The rationale underlying the constitutional claim preservation requirements is “to prevent surprise to the opposing party and permit the trial court an opportunity to fairly identify and rule on the issue.” Mayes v. Saint Luke’s Hosp. of Kan. City, 430 S.W.3d 260, 266 (Mo. banc 2014). The position Appellants articulate in their brief is not consistent with this precedent and, if allowed, would promote surprise to the

9 also contend claims under section 3(b) are interrelated such that raising a section 3(b)(4)

claim inherently raises a 3(b)(1) claim. Alternatively, Appellants claim this issue was

tried by either express or implied consent.

To preserve a constitutional claim for review, appellants must:

(1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

Mayes, 430 S.W.3d at 266 (internal quotation omitted).

Appellants first argue the equal population issue was raised in their amended

petition because they quoted from section 3(b)(1) in the amended petition. But, as

Appellants ultimately conceded at oral argument, a plain reading of the amended petition

easily confirms this claim was not preserved. 2 While the amended petition does

reference the equal population provision in a section titled “Constitutional Criteria for

Drawing Legislative District Maps,” Appellants fail to cite section 3(b)(1) in their factual

allegations section, “The New Senate Map Does Not Comply with Constitutional

Requirements,” or in Counts I or II. Instead, Appellants’ factual allegations focus solely

on the community preservation requirements. For instance, Appellants allege they “are

opposing party and prevent the circuit court from fairly identifying and ruling on constitutional issues. Even considering the facts pleaded in the amended petition, however, Appellants failed to plead any facts relevant to section 3(b)(1). 2 At oral argument, counsel for Appellants conceded they did not preserve a population deviation claim under section 3(b)(1) through their pleadings or at trial, stating “the argument has always been (b)(4).” Because preservation is a legal conclusion, the Court is not bound by Appellants’ concession. See Rule 78.07(b).

10 entitled to a senate map where communities are preserved.” Appellants allege a

multitude of facts showing the violation of the community preservation requirement,

including that the Senate Map divides Buchanan County and Hazelwood, that the Senate

Map divides communities, and that it is possible to design a map in a way that does not

split Buchanan County or Hazelwood. By contrast, nowhere in Appellants’ amended

petition do they state any facts showing the violation of the population provision. 3

Appellants must separately raise section 3(b)(1) and 3(b)(4) claims because they are

independent constitutional claims. Appellants did not raise a section 3(b)(1) claim at the

first available opportunity or plead facts alleging a violation of the population provision;

therefore, Appellants did not preserve any section 3(b)(1) claim.

Appellants next contend that, because claims arising under section 3(b) are so

intertwined, raising a community preservation provision claim inherently raises a

population provision claim. Specifically, Appellants argue that, because subdivisions (1),

(3), and (4) of section 3(b) “mention the concept” of “splitting political subdivisions,”

raising one of these issues necessarily raises the other issues. While Appellants argue on

appeal that the provisions are inherently intertwined, at trial, Appellants made statements

such as “the issue here is … it is not about any of the factors except number (4),”

indicating they believed each subdivision was a separate claim.

3 Appellants do allege their own proposed map meets the requirements of the population provision. But Appellants make no specific factual allegation the Senate Map violates the population provision. Without specifically stating how a constitutional right was denied, “it is simply untenable to argue that the circuit court was fairly presented the opportunity to decide this issue.” Peters v. Johns, 489 S.W.3d 262, 269 (Mo. banc 2016).

11 It is true that subdivisions (1) and (4) cross-reference each other and that

subdivision (1) refers to following political subdivision lines. The community

preservation provision also references the population provision, among others: “To the

extent consistent with subdivisions (1) to (3) of this subsection, communities shall be

preserved.” The reference in subdivision (4) to subdivisions (1) and (3) reinforces the

subdivisions are listed in order of priority. Nothing in the language of these subdivisions

suggests that every time community preservation is challenged in a district in any way,

the equal population of the district and compactness of the district are also challenged by

implication. 4 To conclude otherwise would violate this Court’s precedent establishing

that parties must “designate specifically the constitutional provision claimed to have been

violated” and “state the facts showing the violation.” Mayes, 430 S.W.3d at 266

(emphasis added). The rationale underlying the constitutional claim preservation

4 As the dissenting opinion explains, pursuant to the language in article III, section 3(b)(1), “When a district has a population deviation of more than one percent but less than three percent, it violated the equal population requirement in article III, section 3(b)(1) unless the deviation was caused by following political subdivision lines in the manner set out in (and following in order the four criteria described in) article III, section 3(b)(4).” (Emphasis added). The dissenting opinion, however, erroneously concludes that an equal population deviation in an unpreserved community automatically “violates both section 3(b)(4) and 3(b)(1)” thereby preserving both claims. But article III, section 3(b)(4) states, “To the extent consistent with subdivisions (1) to (3) of this subsection, communities shall be preserved. Districts shall satisfy this requirement if district lines follow political subdivision lines to the extent possible, using the following criteria, in order of priority[.]” (Emphasis added). Appellants did not argue in their amended petition or in the circuit court that their communities were not preserved consistent with subdivision (1) – i.e. that their communities were unpreserved due to an equal population deviation; rather, they asserted that their communities were not preserved because their district lines did not follow the political subdivision lines of a county (Buchanan) and a municipality (Hazelwood) when they could have. It is incumbent on the Appellants to specifically raise each alleged violation as a separate claim.

12 requirements is “to prevent surprise to the opposing party and permit the trial court an

opportunity to fairly identify and rule on the issue.” Id. “The purpose of a pleading is to

limit and define the issues to be tried in a case and [to] put the adversary on notice

thereof.” Smith v. City of St. Louis, 395 S.W.3d 20, 24 (Mo. banc 2013) (alteration in

original) (quoting City of St. Joseph, Mo. v. St. Joseph Riverboat Partners, 141 S.W.3d

513, 516 (Mo. App. 2004)). Raising a community preservation claim does not

automatically put an opposing party on notice of an equal population claim. Section 3

claims are not so intertwined that raising a claim under one provision of section 3

incorporates all other enumerated provisions. 5

Finally, Appellants briefly argue that, even if not presented to the circuit court, the

equal population issue was actually tried by either express or implied consent. Assuming

without deciding Rule 55.33 can apply to constitutional claims, Appellants fail to

demonstrate their equal population claim was tried by express or implied consent. Rule

55.33(b) provides, in relevant part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues

5 Because the subdivisions of section 3(b) cross-reference many other subdivisions, following Appellants’ logic, any challenge brought under subdivision (4) must inherently challenge subdivisions (1), (2), and (3) such that it would never be necessary to enumerate these latter subdivisions. Prior to filing their amended petition, though, Appellants’ initial petition included a claim under subdivision (2), specifically referenced that provision, and showed facts relevant to the alleged violation. Appellants’ logic would open the door to allow provisions of section 3(b) that are mentioned only tangentially in the pleadings or at trial to be preserved for appeal without an adequate record.

13 may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

A review of the record reveals no express agreement between Appellants and the State to

try a claim under section 3(b)(1). Additionally, at trial, Appellants represented they were

trying only the political subdivision issue. During opening statements, Appellants stated,

“all three of these [districts] deviate by more than 1 percent. … So that kicks us into the

discussion we’re really here about which is the political subdivisions.” Appellants also

said “the issue here is … it is not about any of the factors except number (4).” “[A]

point is preserved for appellate review only if it is based on the same theory presented at

trial.” State v. Rice, 573 S.W.3d 53, 63 (Mo. banc 2019) (alteration in original) (internal

quotation omitted). Appellants’ theory at trial was different from what they are now

submitting to this Court. Further, Appellants did not request to amend the pleadings to

conform to the evidence during or after trial. Additionally, Appellants’ pleadings and

actions led the State to move for judgment at the close of Appellants’ case based on

section 3(b)(4) alone. Finally, based on its reading of the pleadings and the evidence and

argument presented at trial, the circuit court concluded “the issue of whether Senate

Districts … violate the equal population provision has not been tried by either express or

implied consent.” This Court, reviewing the record and pleadings, finds Appellants did

not preserve a claim under section 3(b)(1). Point II is denied.

Points III and IV: The circuit court followed the plain meaning of the constitution

Appellants argue in Points III and IV that the circuit court erred by failing to

follow the plain language of the constitution by finding compactness takes priority over

14 community preservation. Appellants similarly argue the circuit court erred by using a

mathematical calculation to determine the compactness of the Senate Map and

Appellants’ proposed map.

Constitutional interpretation is a question of law this Court reviews de novo.

Schweich v. Nixon, 408 S.W.3d 769, 773 (Mo. banc 2013). “Words used in constitutional

provisions are interpreted to give effect to their plain, ordinary, and natural meaning.”

Wright-Jones v. Nasheed, 368 S.W.3d 157, 159 (Mo. banc 2012).

First, Appellants argue the circuit court erred by finding that compactness, article

III, section 3(b)(3), is given a higher priority than community preservation, article III,

section 3(b)(4). Article III, section 3(b)(3) states:

Subject to the requirements of subdivisions (1) and (2) of this subsection, districts shall be composed of contiguous territory as compact as may be. Areas which meet only at the points of adjoining corners are not contiguous. In general, compact districts are those which are square, rectangular, or hexagonal in shape to the extent permitted by natural or political boundaries[.]

Appellants argue the language “to the extent permitted by natural or political boundaries”

demonstrates community preservation in districts should take priority over compactness.

Appellants’ argument, in other words, is that “a district need not be compact if following

political or natural boundaries is the reason it is not.” This construction is erroneous.

The plain text of the constitution states the methods for redistricting are “listed in

order of priority.” Mo. Const. art. III, sec. 3(b). The plain meaning of article III, section

3(b) is that compactness in subdivision (3) is given a higher priority than preserving

communities in subdivision (4). Appellants argue that, because a portion of subdivision

15 (3) references political boundaries, maintaining political boundaries rises to the same

level of priority as compactness, if not higher. A plain reading of the provision reveals

the flaw in Appellants’ argument. The reference “to the extent permitted by natural or

political boundaries” in article III, section 3(b)(3) means that, if a district is not square,

rectangular, or hexagonal because the district’s perimeter follows a natural or political

boundary, the district does not necessarily fail subdivision (3)’s compactness

requirement. A district still must be as compact as possible, but may follow natural or

political boundaries without necessarily becoming uncompact. 6

Article III, section 3(b)(4) states: “To the extent consistent with subdivisions (1)

to (3) of this subsection, communities shall be preserved.” (Emphasis added). The plain

meaning of this phrase further clarifies that preserving communities is subordinate to the

preceding methods for redistricting.

Finding the plain language of the constitution requires the methods for

redistricting be prioritized as listed, compactness (subdivision (3)) takes priority over

preserving communities (subdivision (4)). Appellants raise other arguments in the body

of their argument not addressed in the point relied on; therefore, those issues are not

preserved for appellate review. Rule 84.04(e). Point III is denied.

6 Further, subdivision (3) also mentions natural boundaries, which are not included as a constitutional method for redistricting. It is evident, therefore, that the reference to “natural or political boundaries” is not directly related to preserving communities discussed in subdivision (4) and was not meant to somehow elevate subdivision (4) to the priority level of subdivision (3).

16 Appellants similarly argue in Point IV that the circuit court erred by using

mathematical calculation to compare the compactness of the Senate Map and Appellants’

proposed map. Appellants argue the constitution requires compactness to be determined

by “visually assess[ing] the shapes of districts and then consider[ing] whether those

districts respect political subdivisions.”

The requirements for compactness state:

[D]istricts shall be composed of contiguous territory as compact as may be. Areas which meet only at the points of adjoining corners are not contiguous. In general, compact districts are those which are square, rectangular, or hexagonal in shape to the extent permitted by natural or political boundaries[.]

Mo. Const. art. III, sec. 3(b)(3). The plain language of this provision requires the shapes

of districts generally to be shaped like certain polygons: squares, rectangles, or hexagons.

Section 3(b)(3) also recognizes there may be some variation to these shapes because

districts should be “as compact as may be” and “[i]n general” shaped like certain

polygons “to the extent permitted by natural or political boundaries.” The constitution

incorporates geometry into its plain language by requiring districts to resemble certain

shapes. Geometry is “a branch of mathematics that deals with the measurement,

properties, and relationships of points, lines, angles, surfaces, and solids.” Geometry,

Webster’s Third New International Dictionary (2002). The plain language of the

constitution requires districts to take particular shapes, when possible. Each shape listed

in the constitution has unique mathematical properties. 7

7 For example, a square is “a rectangle with all four sides equal.” Square, Webster’s Third New International Dictionary (2002).

17 At trial, experts for both the Secretary and Appellants used mathematical formulas

to analyze compactness. The Secretary’s expert relied on Convex Hull scores, which

express how closely the districts resembled the shapes listed in subdivision (3). In

weighing the evidence, the circuit court found the Secretary’s expert to be “well qualified

based on his education and experience to provide opinions on legislative map drawing.”

Based on the expert’s testimony, the circuit court further found, “the higher the Convex

Hull score, the more it complies with the Missouri Constitution’s compactness criteria.”

As to Appellants’ expert, the circuit court found that he was not helpful because he could

not testify as to how the computer program on which he relied calculated its results.

Using a mathematical formula to determine how closely the shape of the districts

matched these properties required by the constitution is not erroneous. 8 Point IV is

denied.

Points V and VI: The circuit court applied the correct burden to Appellants, and its findings were supported by substantial evidence

Appellants argue in Point V that the circuit court erred by requiring them to show

any districts deviating from population or compactness requirements in the Senate Map

did not result from consideration of recognized factors. Appellants contend this burden

8 In Pearson II, the parties stipulated to eight statistical tests to measure compactness. 367 S.W.3d at 55. This Court noted, “[B]oth Plaintiffs’ and Defendants’ experts testified that such measures are relevant to the evaluation of compactness. Therefore, they could have been a factor relied on by the trial court.” Id. at 55 n.18. While the compactness provision of the constitution was amended between Pearson II and this case, the current language does not prohibit the use of mathematical calculation. Similar to Pearson II, the Secretary’s expert explained the use of a Convex Hull score and how it was relevant to measuring compactness. The circuit court properly found the score relevant.

18 no longer applies because the standard was articulated in Johnson, which was decided

based on a previous constitutional redistricting scheme. Appellants further contend in

Point VI that, even if the circuit court applied the correct standard, they submitted

uncontroverted evidence establishing that there was no other redistricting factor

requiring splitting Buchanan County or Hazelwood; therefore, the circuit court’s finding

was erroneous.

Which burden of proof applies at trial is a question of law this Court reviews de

novo. Pearson II, 367 S.W.3d at 43. For redistricting cases, this Court has previously

held it “will uphold [a redistricting] plan unless it plainly and palpably affronts

fundamental law embodied in the constitution, and doubts will be resolved in favor of the

constitutionality of the plan.” Johnson, 366 S.W.3d at 20 (internal quotation omitted).

When there is contested evidence, 9 this Court will affirm the circuit court’s factual

findings unless there is no substantial evidence to support the finding or the finding is

against the weight of the evidence. Pearson II, 367 S.W.3d at 43.

In Johnson, this Court determined a “plaintiff also must prove that any minimal

and practical deviation from population equality or compactness in a district does not

result from application of recognized factors that may have been important considerations

9 Appellants claim to have uncontroverted evidence proving there was no requirement to split a political subdivision. Because Appellants misunderstand the burden of proof, this evidence does not satisfy Appellants’ burden of production and persuasion. “[A] party can contest the evidence in many ways, such as by putting forth contrary evidence, cross- examining a witness, challenging the credibility of a witness, pointing out inconsistencies in evidence, or arguing the meaning of the evidence.” Pearson II, 367 S.W.3d at 44.

19 in the challenged map.” 366 S.W.3d at 30. The Court found the language of “[t]he

population equality and compactness requirements … have interrelated standards that are

impacted by the existence of other possibilities.” Id. At that time, the redistricting

standard stated:

The commission shall reapportion … by dividing the population of the state by the number one hundred sixty-three and shall establish each district so that the population of that district shall, as nearly as possible equal that figure. Each district shall be composed of contiguous territory as compact as may be.

Mo. Const. art. III, sec. 2 (1982) (emphasis added). Because the requirements for

population equality and compactness were curbed with the language “as nearly as

possible” and “as may be,” the standards “are impacted by the existence of other

possibilities.” Johnson, 366 S.W.3d at 30.

Although Johnson interpreted different constitutional language, this Court relied

on fundamental principles equally applicable here. Prior to Johnson, this Court had long

recognized that political subdivision lines and compliance with federal law are

permissible and important considerations in the redistricting process, even if those factors

were not explicitly enumerated in the constitution. See Pearson I, 359 S.W.3d at 40 n.1

(recognizing counties as important governmental units); Preisler v. Kirkpatrick,

528 S.W.2d 422, 425-26 (Mo. banc 1975) (discussing political subdivisions, historical

boundary lines, and population density as important considerations in the redistricting

process), overruled on other grounds by Pearson I, 359 S.W.3d at 39; Preisler v.

Hearnes, 362 S.W.2d 552, 556 (Mo. banc 1962) (noting “counties are important

governmental units”); Preisler v. Doherty, 284 S.W.2d 427, 432 (Mo. banc 1955)

20 (identifying county, town, ward, or other district lines as boundaries map-drawers may

follow). In discussing these cases, this Court recognized:

These cases do not hold that constitutional requirements can be disregarded to consider other factors but, instead, recognize that the constitutional requirements themselves incorporate such considerations by use of the standards “as may be,” and “as possible.” As part of the standards for the constitutional requirements, federal law and the previously recognized factors are in fact of constitutional significance, and this Court recognizes that in its precedent.

Johnson, 366 S.W.3d at 30. In context, this Court’s use of the phrase “previously

recognized factors” refers to this line of precedent identifying political subdivision lines

as permissible factors in the redistricting process.

The current language of the constitution enshrines these “recognized factors”

explicitly. See Mo. Const. art. III, sec. 3(b). As explained above, subdivision (2)

requires compliance with the United States Constitution and applicable federal law and

subdivision (4) provides for community preservation by requiring districts to follow

political subdivision lines to the extent possible, listing certain criteria map-drawers must

follow.

Accordingly, contrary to Appellants’ suggestion, the 2020 amendment did not

alter the standard articulated in Johnson. A plaintiff still has the burden of proving a

redistricting plan is clearly and undoubtedly unconstitutional, and that burden must

account for the factors the redistricting commission “must consider and those it is

permitted to consider.” Johnson, 366 S.W.3d at 30. The plaintiff must objectively prove

that a constitutional requirement – population equality, compliance with federal law,

contiguity, compactness (as much as may be), community preservation (to the extent

21 possible), or partisan fairness and competitiveness (subject to the foregoing factors) – has

not been met. To the extent a plaintiff alleges a district violates a constitutional

requirement containing discretionary language, such as compactness or community

preservation, that plaintiff will have the burden to show this violation is not a minimal

and practical deviation necessary to comply with other constitutional requirements. 10

The circuit court correctly applied this standard to the challenged districts here.

The circuit court then found Appellants did not meet their burden of proving the split

political subdivisions were not the result of the Judicial Commission’s consideration of

recognized factors because the “evidence shows that any deviation results from valuing

compactness over political subdivisions, as the Constitution permits.” See Mo. Const art.

III, sec 3. When other constitutional requirements are satisfied, the constitution provides

that “split counties … shall each be as few as possible” “[t]o the extent consistent with

subdivisions (1) to (3)[.]” Mo. Const. art. III, sec. 3(b)(4); see also supra Point III. The

circuit court found the Secretary’s expert well qualified and the Appellants’ expert

unhelpful. The Secretary’s expert testified that Convex Hull scores, a measure of

compactness, were used to draw the Senate Map. The Secretary’s expert also testified

Buchanan County was split in about 23 percent of simulated maps and Hazelwood was

split in about 11 percent of simulated maps. The Secretary’s expert testified that

10 As this Court previously noted in Johnson, a plaintiff may satisfy this objective standard by presenting evidence – such as proposed maps – demonstrating the alleged violation was not necessary to achieve the same compliance with other constitutional requirements. See supra Point I. “So long as the evidence persuades the trial court that the challenged map clearly and undoubtedly contravenes the constitution, the plaintiff will prevail.” Johnson, 366 S.W.3d at 31 (internal quotation omitted).

22 boundaries in populated areas were harder to draw and “are the ones you would tend to

split.”

Based on all the evidence presented at trial, the circuit court found random

simulations often split Buchanan County and Hazelwood, indicating these splits were

often necessary to achieve population equality. The circuit court further found there was

no indication of partisan or racial gerrymandering resulting from splitting these two

political subdivisions. The circuit court found these two districts achieved greater

compactness than Appellants’ proposed map and, further, Appellants failed to address,

much less rebut, this evidence. Finally, the circuit court observed: “Splitting one county

and one municipality represent the least amount of discretion—or, at worst, an

appropriate amount here—that can be afforded any redistricting commission.”

(Emphasis added).

Accordingly, the circuit court applied the proper legal standard to the facts and

evidence adduced at trial. There was substantial evidence supporting the circuit court’s

finding that the deviations in the Senate Map were the result of considering population

equality and compactness. Points V and VI are denied.

Points VII and VIII: The Judicial Commission was not a necessary party, nor was it error to quash discovery requests served to the Judicial Commission

In Points VII and VIII, Appellants argue the circuit court erred in sustaining the

Judicial Commission’s motion to dismiss the Judicial Commission as a party and abused

its discretion by quashing Appellants’ discovery requests to the Judicial Commission.

23 First, Appellants argue the circuit court erred in dismissing the Judicial

Commission from this lawsuit because the Judicial Commission is constitutionally

required to be a party under article III, section 7(i). The circuit court sustained the

motion to dismiss the Judicial Commission, finding the Judicial Commission was neither

a necessary nor indispensable party after the initial filing of the lawsuit because the

Judicial Commission could not afford Appellants any form of relief, the Judicial

Commission’s absence from the lawsuit would not impair any party’s ability to protect

their interests, and the only issue to be determined in the lawsuit is the objective

determination of whether the Senate Map violates the constitution. The circuit court

found the Judicial Commission’s involvement had no bearing on these issues. 11

Article III, section 7(i) states, relevant to the parties in a redistricting lawsuit:

“Any action expressly or implicitly alleging that a redistricting plan violates this

Constitution, federal law, or the United States Constitution shall be filed in the circuit

court of Cole County and shall name the body that approved the challenged redistricting

plan as a defendant.” 12 The Judicial Commission approved the challenged redistricting

plan and was named as a defendant in this lawsuit. This satisfies all that the constitution

requires.

11 The circuit court also found Appellants failed to state a claim for relief against the Commission, requesting relief only against the Secretary. See Rule 55.27(a)(6). 12 The Senate Independent Bipartisan Citizens Commission is the first body that may approve a senate redistricting plan. Mo. Const. art. III, sec. 7(a).

24 The question remains whether the Judicial Commission continues to be a required

party after the lawsuit is filed. The circuit court correctly found it is not. Rule 52.04

governs required parties to a lawsuit. A party is required if:

(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may; (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Rule 52.04(a). Complete relief can be granted by the Secretary, the remaining

defendant, 13 see Rule 52.04(a)(1), and the Judicial Commission does not have an

interest in the disposition of this lawsuit, see Rule 52.04(a)(2). Therefore, after the

lawsuit was filed, the Judicial Commission was no longer a required party and was

properly dismissed as a party pursuant to Rule 52.06. 14

Finding the Judicial Commission is not a necessary or indispensable party for this

suit, the circuit court did not err in dismissing the Judicial Commission from the suit.

Point VII is denied.

Second, Appellants argue the circuit court abused its discretion in sustaining the

Judicial Commission’s motion to quash discovery requests propounded by Appellants.

13 Appellants’ petition requests injunctive relief against the Secretary, requesting the Secretary not use the Senate Map “for any purpose.” Appellants also requested a declaratory judgment, asking the circuit court to declare the Senate Map unconstitutional and adopt their proposed map. This relief comes from the court, and this claim of relief does not transform the Judicial Commission into a necessary party under Rule 52.04(a). 14 Rule 52.06 permits parties to be dropped from the lawsuit “at any stage of the action and on such terms as are just.”

25 Relying on Johnson, the circuit court found Appellants’ discovery requests were not

reasonably calculated to lead to the discovery of admissible evidence because the

requests were “not relevant to the ultimate standard governing redistricting challenges” in

that “[t]he issue of whether the constitutional requirements are satisfied is determined

objectively.” The circuit court did not err in finding Appellants’ discovery requests were

not reasonably calculated to lead to the discovery of admissible evidence.

As the circuit court correctly noted, and Appellants have argued before this

Court, 15 this Court has previously held “the issue of whether the constitutional

requirements are satisfied is determined objectively, requiring no proof of the subjective

intent of the reapportionment commission.” Johnson, 366 S.W.3d at 30 (emphasis

added); see also id. at 24 (finding the methods for redistricting listed in the Constitution

are “mandatory and objective, although the language used in the requirements themselves

creates a level of flexibility in their compliance”). The Judicial Commission’s

deliberations, thought processes, or other potential redistricting maps considered are not

relevant in determining whether the Senate Map violates the constitution. The Senate

Map is all that is necessary to determine whether the objective constitutional

requirements have been met. Although Appellants argue the circuit court made findings

about the Judicial Commission’s decisions, 16 such findings are supported by objective

15 See supra Point I. 16 Appellants take issue with the following statements: “[T]he Judicial Commission chose districts that were more compact”; “[T]he evidence clearly shows that to the extent there is any perceived imperfection in the Senate Map, the choices made by the Judicial Redistricting Commission are reasonable”; and “[T]he evidence also shows that splitting those two political subdivisions are natural choices that do not show any indication of

26 observation of the Senate Map rather than requiring investigation into the Judicial

Commission’s processes.

Finding the circuit court did not err in quashing discovery of the Judicial

Commission in that Appellants’ discovery requests would not yield relevant evidence,

Point VIII is denied.

Conclusion

The circuit court’s judgment is affirmed.

___________________________________ KELLY C. BRONIEC, JUDGE

Russell, C.J., Fischer, Ransom and Gooch, JJ., concur; Powell, J., dissents in separate opinion filed; Wilson, J., concurs in opinion of Powell, J.

improper manipulation of the districts.” Each of these statements refers to information found by objectively observing the Senate Map. The “choices” of the Judicial Commission are apparent on the face of the Senate Map, and the alternative choices that the Judicial Commission may or may not have rejected in choosing the Senate Map are not dispositive in determining whether the Senate Map is constitutional.

27 SUPREME COURT OF MISSOURI en banc CLARA FAATZ, et al., ) ) ) Appellants, ) ) v. ) No. SC100277 ) JOHN ASHCROFT, MISSOURI ) SECRETARY OF STATE, ) ) ) Respondent. )

DISSENTING OPINION

I respectfully dissent from the principal opinion’s holding that Appellants failed to

preserve their constitutional challenge to the Missouri Senate redistricting plan (“Senate

Map”). In the circuit court, Appellants alleged the Senate Map violates both the

community preservation and equal population requirements set forth in the Missouri

Constitution, and Appellants raised both of these inextricably intertwined claims at trial.

Appellants, therefore, preserved their constitutional challenge to the Senate Map.

Reaching the merits, I would hold the Senate Map violates article III, section 3 of the

Missouri Constitution because it both allows for a population deviation of greater than one

percent for senate districts containing Buchanan County and the city of Hazelwood and fails to preserve these two communities as required by the constitution. 1

As the principal opinion sets forth, the Missouri Constitution provides the criteria

and methods that must be observed in a Senate redistricting map. Article III, section 3

requires new maps to be drawn based on five identified criteria and directs use of its

methods “in order of priority[.]”

First, districts “shall be as nearly equal as practicable in population.” Id. § 3(b)(1).

This simply is devised by determining the population of the constitutionally required 34

senate districts if the population were the same in each district. The resulting population

in each district is considered the “ideal population.” Id. “Districts are as nearly equal as

practicable in population if no district deviates by more than one percent from the ideal

population of the district.” Id. Section 3(b)(1), however, allows a district to “deviate by

up to three percent [of the ideal population] if necessary to follow political subdivision

lines” and preserve communities consistent with section 3(b)(4). Id.

Second, the districts must comply with federal constitutional and statutory

requirements, such as the federal voting rights act. Id. § 3(b)(2). Third, the districts must

be as contiguous and compact “as may be[,]” “[s]ubject to the requirements of subdivisions

(1) [equal population] and (2) [federal constitutional and statutory criteria] of this

1 The Judicial Commission, which drew and submitted the Senate Map to the Secretary of State, operated on a very short timetable to complete its constitutional task of creating a redistricting map. Despite my constitutional misgivings, the Judicial Commission is commended for its Herculean efforts to complete the Senate Map in the very limited time it was provided to draw and approve the Senate Map after the Citizens Commission failed to agree on a map.

2 subsection.” Id. at § 3(b)(3). Fourth, “communities shall be preserved[,] “[t]o the extent

consistent with subdivisions (1) to (3).” Id. § 3(b)(4). Accordingly, the constitution

requires communities to be preserved within the districts, but the constitution contemplates

that political subdivisions may need to be divided and can be preserved only if “consistent

with subdivisions (1) to (3) [equal population, federal constitutional and statutory criteria,

and compactness].” Id. Finally, “[d]istricts shall be drawn in a manner that achieves both

partisan fairness and, secondarily, competitiveness.” Id. § 3(b)(5). “[B]ut the standards

established by subdivisions (1) to (4) [equal population, federal constitutional and statutory

criteria, compactness, and community preservation] shall take precedence.” Id.

Pursuant to the Missouri Constitution, then, the first and most important priority in

redistricting is equal population; second, federal and constitutional and statutory criteria;

third, compactness; fourth, community preservation; and fifth, partisan fairness and

competitiveness. This constitutional scheme provides some discretion and choices for

redistricting maps in the areas of compactness, community preservation, and partisan

fairness/competitiveness, but this discretion is tempered by the bright line, higher priority

requirements of equal population and federal constitutional and statutory criteria.

Constitutional Violation

What is fundamentally clear from Appellants’ challenge to the Senate Map is their

vote has been diluted. Their communities, Buchanan County and Hazelwood, have not

been preserved, and, as a result, they are unable to vote in unison with their neighbors to

voice the concerns and desires of their individual communities. Even more troubling, the

districts containing their divided communities have larger populations than many other

3 senate districts and dilute the vote of the individual members of their communities. The

Senate Map splits Buchanan County between districts 12 and 34 and splits Hazelwood

between districts 13 and 14. Districts 34, 13, and 14 have far more voters than the average

district in the state and, thus, do not enjoy the obvious advantages of preserving their

community’s voting bloc. This circumstance is exactly what the Missouri Constitution

seeks to prevent.

As noted above, the Missouri Constitution provides, as the first and most important

criteria in redistricting, that “[d]istricts shall be as nearly equal as practicable in population,

and shall be drawn on the basis of one person, one vote.” Mo. Const. art. III, § 3(b)(1).

This paramount consideration is to ensure redistricting in accordance with fundamental

principles of representative government guaranteed by the federal constitution.

“Undeniably the Constitution of the United States protects the right of all qualified citizens

to vote, in state as well as in federal elections.” Reynolds v. Sims, 377 U.S. 533, 554 (1964).

“The right to vote freely for the candidate of one’s choice is of the essence of a democratic

society, and any restrictions on that right strike at the heart of representative government.”

Id. at 555. This right can be abridged through voter dilution. Id.

Voter dilution occurs when senators or representatives are selected from districts of

unequal population, effectively making votes in larger districts worth less than votes in

smaller districts. The United States Supreme Court has held such apportionment schemes

to be at odds with our bedrock conceptions of political equality and in violation of the equal

protection of the laws guaranteed by the federal constitution. “The conception of political

equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the

4 Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one

person, one vote.” Gray v. Sanders, 372 U.S. 368, 381 (1963). Accordingly, “the Equal

Protection Clause requires both houses of a state legislature to be apportioned on a

population basis.” Reynolds, 377 U.S. at 576. This is such an important right, the United

States Supreme Court allows only relatively minor population deviations among state

legislative districts, based on legitimate reasons such as preserving communities, to be

constitutionally permitted. Id. at 578; White v. Regester, 412 U.S. 755, 764 (1973).

In accordance with the federal constitution, the equal population provision in the

Missouri Constitution requires districts to contain equal population with allowance for only

one percent deviation in general and up to three percent deviation if necessary to follow

political subdivision lines “consistent” with section 3(b)(4). Mo. Const. art. III, § 3(b)(1).

Likewise, the community preservation provision of the Missouri Constitution requires

communities be preserved, but only if such preservation is “consistent” with the

requirements of equal population set out in section 3(b)(1). Id. § 3(b)(4). Ensuring equal

population in both preserved and divided communities is enshrined and guaranteed in both

the federal and Missouri constitutions.

Reviewing the undisputed evidence presented in this case, splitting Buchanan

County and Hazelwood violates the equal population provision in article III, section 3(b)(1)

and the community preservation provision in section 3(b)(4) of the Missouri Constitution.

The Senate Map divides Buchanan County into districts 12 and 34 and Hazelwood into

districts 13 and 14. The evidence presented to the circuit court, however, established that

Buchanan County and Hazelwood could have been undivided and preserved in one district

5 and still comply with the equal population requirement. Instead, three of the resulting

districts containing parts of the divided communities, districts 13, 14, and 34, deviate from

the ideal population by more than the one-percent threshold but are less than three-percent

deviation. The community preservation provision, article III, section 3(b)(4), is clear that

preserving communities in a redistricting map must be “consistent with subdivision[] (1)

[equal population].” The equal population provision, article III, section 3(b)(1), is also

clear that no district may deviate by more than one percent from the ideal population of the

district, “except that a district may deviate by up to three percent if necessary to follow

political subdivision lines consistent with subdivision (4) of this subsection[.]” This

provision does not allow deviating up to three percent solely to split a political subdivision,

only for keeping it together. Id. In this case, dividing Buchanan County into districts 12

and 34 and Hazelwood into districts 13 and 14, each results in districts (13, 14, and 34) that

deviate from the ideal population by more than one percent and fail to follow political

subdivision lines. This violates the constitutional parameters, which are mandatory and

must be given effect. Pearson v. Koster, 359 S.W.3d 35, 40 (Mo. banc 2012).

The circuit court’s justification for excusing this violation conflates the importance

of the priority scheme set out in the Missouri Constitution. The circuit court reasoned the

community preservation provision is not violated because the population deviation can

exceed one percent to ensure the redistricting map is more compact. This argument rests

on reading the language of the community preservation exception in section 3(b)(1)

(providing a district may deviate by up to three percent if necessary to follow political

subdivision lines “consistent with subdivision (4) [community preservation] of this

6 subsection”) as incorporating article III, section 3(b)(4)’s provision that communities shall

be preserved “[t]o the extent consistent with subdivisions (1) to (3)[.]” But this

interpretation fails to take into account the unambiguous guiding principle of section 3(b),

which expressly provides its criteria are listed in order of priority. Subdivision (1) provides

equal population is the first and most important priority, only specifying and allowing for

deviation for community preservation as provided by subdivision (4). The circuit court’s

reading of section 3 nullifies this clear constitutional prioritization of equal population by

essentially making it subservient to the compactness criteria listed as a lower priority, the

exact reverse of the constitutional mandate. This Court cannot resort to such a

construction. State ex rel. Hillman v. Beger, 566 S.W.3d 600, 605 (Mo. banc 2019) (“If

the language … is plain and unambiguous, this Court is bound to apply that language as

written and may not resort to canons of construction to arrive at a different result.”). This

is especially true here given the clear, obvious, and paramount importance of each district

containing equal population unless necessary to preserve communities to guarantee the

undiluted right to vote to each Missouri citizen. See Gray, 372 U.S. at 381; Reynolds, 377

U.S. at 568.

Contrary to the circuit court’s holding, then, article III, section 3(b)(1) [equal

population] does not incorporate subdivisions (2) [federal constitutional and statutory

criteria] and (3) [compactness] into its three-percent community preservation exception.

Rather, the reference to subdivision (4) in subdivision (1) allows a deviation of more than

one percent to accommodate the preservation of communities consistent with subdivision

(4). Subdivision (4) contains various parameters regarding community preservation, and

7 within these guidelines is the sole exception to deviating by more than one percent from

the ideal population of a district.

The equal population and community preservation provisions mean what they say:

no district may deviate from greater than one percent “except … if necessary to follow

political subdivision lines consistent with subdivision (4)[.]” Because splitting Buchanan

County and Hazelwood into separate districts was unnecessary to comply with the equal

population requirement, dividing these communities violates article III, section 3(b) by

allowing senate districts containing portions of each of these political subdivisions to

deviate by more than one percent of the ideal population. The Senate Map as it pertains to

districts 34, 12, 13, and 14 is unconstitutional.

Preservation

The principal opinion evades Appellants’ undeniable constitutional challenge,

however, by instead going to great lengths to find Appellants’ claim to be unpreserved and,

therefore, unreviewable. The principal opinion finds Appellants solely assert a community

preservation violation and did not allege an equal population violation. Specifically, the

principal opinion contends Appellants allege facts showing a violation of community

preservation, but Appellants do not allege facts warranting an equal population violation.

The principal opinion, therefore, finds Appellants failed to preserve their constitutional

challenge to the Senate Map. This conclusion is misplaced and unwarranted for several

reasons.

First, Appellants specifically pleaded and alleged an equal population violation in

their amended petition. Appellants allege in paragraph 22 of their amended petition that

8 “the Constitution provides criteria that must be followed when drawing state senate and

house of representative maps.” The very next paragraph, paragraph 23, specifically cites

to and quotes extensively from section 3(b)(1), the equal population criteria, wherein

Appellants allege that districts must be “nearly equal as practicable in population” with

deviations of not “more than one percent” or not more than “three percent if necessary to

follow political subdivision lines[.]” In the next paragraph, paragraph 24, Appellants cite

to and quote extensively from section 3(b)(4), the community preservation criteria, in

alleging that districts shall preserve communities by following political subdivision lines.

In paragraphs 27 and 29, Appellants allege Buchanan County and Hazelwood are split

between two districts. In paragraph 26, Appellants allege “[c]ommunities are not preserved

if counties are split when not necessary to comply with other, higher order requirements in

the Constitution.” The only higher order requirement cited in Appellants’ amended petition

is section 3(b)(1), the equal population requirement. In fact, Appellants cite to only two

provisions from article III, section 3 of the Missouri Constitution: sections 3(b)(1) and

3(b)(4). No other provision from the redistricting priority scheme is referenced or

mentioned in their amended petition. Present in Appellants’ petition, therefore, is the

allegation that the Senate Map fails to preserve communities in compliance with the higher

priority requirement of equal population set forth in section 3(b)(1). It cannot be said that

Appellants have not pleaded facts showing a 3(b)(1) violation because they allege that both

Buchanan County and Hazelwood were split in a way that does not preserve communities

in compliance with section 3(b)(1)’s equal population requirement.

9 The amended petition then goes on to allege that the Senate Map “does not comply

with all the requirements [plural] of the Missouri Constitution.” The petition alleges the

Senate Map “divides” Buchanan County and Hazelwood, and, “to comply with the

constitutional requirement that district populations deviate by no more than three percent

if necessary to follow political subdivision lines, the [Appellants’ proposed senate map]

makes minor changes to two other senate districts.” Finally, Appellants allege they “seek

declaratory judgments [plural] that the [Senate Map] violates these constitutional

requirements [plural] and is invalid.” Any fair reading of the amended petition must

acknowledge that, when it refers to violations of plural constitutional requirements in

paragraph 36, it is referring to the equal population and community preservation

requirements in article III, sections 3(b)(1) and 3(b)(4), cited to and quoted from in the

amended petition, paragraphs 23 and 24. Appellants’ entire lawsuit is premised on the

Senate Map’s failure to comply with sections 3(b)(1) and 3(b)(4) by splitting communities

and yet creating districts that do not contain the proper deviation from the ideal population.

These allegations are repeated in Count I, concerning the improper division of

Buchanan County, and in Count II, concerning the improper division of Hazelwood. In

Count I, after alleging the Senate Map divides Buchanan County, and after noting the equal

population requirement allows for population deviations for up to three percent to preserve

political subdivision lines, Appellants allege the “Senate Map does not comply with all the

requirements [plural] of the Missouri Constitution.” Similarly, after alleging the improper

division of Hazelwood, Appellants allege in Count II that their proposed senate map

“shows that it is possible to draw a map that complies with all constitutional requirements

10 [plural], including preserving communities.” Again, this reference to plural constitutional

requirements can mean only the equal population and community preservation

requirements in article III, sections 3(b)(1) and 3(b)(4), which Appellants cite to and quote

from in paragraphs 23 and 24 of the amended petition without referring to any other

provision in the constitutional priority redistricting scheme. Appellants’ petition,

therefore, clearly alleges the failure to follow political subdivision lines in Buchanan

County and Hazelwood violates section 3(b)(4) by failing to preserve communities and

3(b)(1) because the equal population requirement allows a deviation up to three percent

only to preserve, not divide, communities.

To justify finding Appellants’ claim to be unpreserved, the principal opinion places

too much weight on the lack of specific factual allegations showing an equal population

violation in the amended petition. But this Court has never read a pleading so narrowly to

find a constitutional question unpreserved when a party alleges a specific constitutional

section has been violated yet fails to plead sufficient facts showing a violation occurred.

In fact, this Court has only found constitutional questions not preserved for review when a

party categorically fails to cite a constitutional section or fails to plead any facts showing

the alleged constitutional violation. See, e.g., Callier v. Dir. of Revenue, 780 S.W.2d 639,

642 (Mo. banc 1989) (finding a constitutional question was not preserved when the petition

“contain[ed] no designation of any constitutional section claimed to have been violated”

and “plead[ed] no facts showing a constitutional violation”); Record Newspaper Co. v.

Indus. Comm’n, 340 S.W.2d 613, 615 (Mo. 1960) (finding a constitutional question was

not preserved when the question was completely absent from the record, including in the

11 plaintiff’s petition); Barnes v. Anchor Temple Ass’n, 369 S.W.2d 192, 194 (Mo. 1963)

(finding a constitutional argument was not preserved when the defendant failed to cite to

any constitutional provision in the motion for new trial); State ex rel. Allison v. Barton, 197

S.W.2d 667, 669 (Mo. banc 1946) (finding a constitutional question was not preserved

when the relator failed to cite any provisions of the then in effect 1875 Constitution); Mayes

v. Saint Luke’s Hosp. of Kan. City, 430 S.W.3d 260, 266-67 (Mo. banc 2014) (finding a

constitutional challenge not preserved when plaintiffs pleaded specific constitutional

provisions but pleaded “no statement of facts in the section raising the constitutional

objections” (emphasis added)); Atkins v. Dep’t of Bldg. Regul., City of Springfield, 596

S.W.2d 426, 434 (Mo. 1980) (“A party who asserts the unconstitutionality of a statute or

ordinance bears the burden of supporting that contention by at least relating his argument

to the statute or ordinance and issue at hand.”). As shown above, that is simply not the

case here. Appellants specifically cite to section 3(b)(1) in their amended petition and

allege facts that the Senate Map failed to preserve the communities of Buchanan County

and Hazelwood in compliance with the higher priority requirement of equal population as

set forth in section 3(b)(1). The principal opinion’s decision, therefore, to invoke

preservation requirements and avoid review of this important constitutional principle is

unnecessary and unwarranted.

The principal opinion’s conclusion that Appellants failed to preserve their

constitutional claim also ignores that Appellants’ constitutional challenge based on

sections 3(b)(1) and 3(b)(4) are inextricably intertwined. To determine if the community

preservation provision was violated as provided by article III, section 3(b)(4), the court

12 must consider equal population. In fact, the constitution requires this review. Article III,

section 3(b)(4) specifically dictates that “communities shall be preserved” “consistent with

subdivision[] (1) [equal population].” C.f. Johnson v. State, 366 S.W.3d 11, 24 (Mo. banc

2012) (“It is impossible to consider whether the map is as compact ‘as may be’ without

also considering whether the population is ‘as nearly as possible, equal.’ One determination

cannot be made without consideration of the other.”). While the principal opinion is correct

that a community preservation violation could exist in isolation, any analysis of a

redistricting map’s compliance with section 3(b)(4) necessarily includes consideration of

its compliance with section 3(b)(1). Put simply, section 3(b)(4) is cross-referenced in

section 3(b)(1), and section 3(b)(1) is cross-referenced within section 3(b)(4). It is

painfully obvious that, when you cite to one provision, you are citing to the other by

cross-reference. 2

Moreover, preserving equal population is the paramount, non-negotiable

assumption implicated by any community preservation challenge to a redistricting plan.

When a district has a population deviation of more than one percent but less than three

2 The principal opinion suggests that finding sections 3(b)(1) and 3(b)(4) as inherently intertwined would “open the door to allow provisions of subsection 3(b) that are only tangentially mentioned in the pleadings or at trial to be preserved for appeal without an adequate record.” This concern is misfounded because, as the principal opinion acknowledges, subdivisions (1) and (4) are the only subdivisions which cross-reference each other. By contrast, subdivisions (3) and (5) reference only the subdivisions respectively prioritized ahead of them to make clear the criteria of each respective subdivision are subordinate to those methods listed before it. Moreover, Appellants’ amended petition “designated specifically” article III, sections 3(b)(1) and 3(b)(4) to have been violated, “by explicit reference to the article and section[s]” and “by quotation of the provision[s][.]” See Mayes, 430 S.W.3d at 266. This case does not implicate the concerns raised by the principal opinion.

13 percent, it violates the equal population requirement in article III, section 3(b)(1) unless the

deviation was caused by following political subdivision lines in the manner set out in (and

following in order the four criteria described in) article III, section 3(b)(4). In other words,

if one or more of the districts resulting from dividing Buchanan County or Hazelwood have

a population deviation of more than one percent, that split violates both sections 3(b)(4)

and 3(b)(1) because population deviations exceeding one percent can be justified (up to

three percent) only by political subdivision lines that comply with section 3(b)(4) and

preserve communities.

For the reasons discussed, Appellants’ constitutional challenge plainly and clearly

allege violations of both the constitutional equal population requirement set forth in section

3(b)(1) and the community preservation requirement set out in section 3(b)(4). Therefore,

Appellants have properly preserved their assertions that the divisions of Buchanan County

and Hazelwood violate the constitution as the requirements of equal population and

community preservation are inextricably intertwined and cannot be reviewed without

implicating the other when the split communities result in a deviation of more than one

percent from the ideal population for a district containing a portion of the divided

community.

Not only is it clear that Appellants alleged violations of article III, sections 3(b)(1)

and 3(b)(4) in their amended petition, but the parties also litigated both equal population

and community preservation criteria at trial and clearly understood compliance with both

constitutional requirements were at issue in the case. During the trial,

Appellants argued splitting Buchanan County and Hazelwood violated the equal

14 population provision. Specifically, during opening statements, Appellants directed the

circuit court to:

[L]ook at these constitutional provisions which Your Honor heard about in some of the other arguments. . . . First one is sometimes referred to as equal population. District shall be as equal as possible. And I’ve highlighted here, measured by dividing the number of districts into the statewide population. So we’ve got down below 34 districts, total population divided by 34, you get an ideal population number. And it says in there that it is equal in population because you can’t dial it down to the exact number if it deviates by more than 1 percent, if no district deviates by more than 1 percent, but the districts may be 3 percent if necessary to follow political subdivision lines in Section (4). So the very first thing we do is divide into 34 districts of equal population and it tells us to go look at Section (4) and see whether it impacts the deviation. . . . These three – Well, three of these four districts, 34, that is the Buchanan County, 13 and 14, all exceed 1 percent. This is an excerpt from an exhibit that actually the State’s expert prepared. So all three of these deviate by more than 1 percent, 2.7, 2.67 and 2.67. So that kicks us into the discussion we’re really here about which is these political subdivisions.

Considerable testimony was also adduced during the trial regarding equal

population and complying with the requirements of section 3(b)(1). Equal population was

raised and discussed in depth during both Appellants’ case-in-chief and the Secretary’s

case, but the following testimony from Appellants’ witness is especially relevant to explain

the claims raised by the Appellants in this case:

Q. What are we looking at? It says it but just tell the Judge what we’re seeing here. A. Yes. This is a chart that outlines the deviation of each of the Senate districts in the enacted plan. That is how many more or fewer people it has than the ideal population number. The constitution is very clear that under these circumstances you can – you’ve got to keep the deviation under 1 percent and if you want to go to 3 percent, per the other conditions, so the final column is what I would have spent most of the time looking at in drawing and evaluating plans, which is, you know, are any of these more than 3 percent in absolute terms, and then of the ones that are more than 1

15 percent, do they follow the community boundaries as outlined in the constitution. Q. So somebody asked -- I know the Judge is good at math. -- some of these are negative numbers? A. Yes. Q. Can you explain positive versus negative numbers? A. Yeah. So if you are looking at Districts 33 and 34, District 33 has 2,400, 2,500 people less than the 181,000, which is the ideal population, so that works out to minus 1.37 percent. 34 has about -- almost 5,000 more than the ideal number, so the deviation is 2.71. So what matters for our analysis or in my experience the analysis that is done is that absolute value, so it doesn’t matter positive or negative. It just means is that first numeral 3 or greater. Q. Could you tell whether, in looking at the maps in dividing Buchanan County, could you tell whether you have to divide Buchanan County to comply with the population proportion requirements? A. Can you ask that again so I make sure I understand[?] Q. Yeah. Could you tell whether you must divide Buchanan County in order to comply with the population requirements? A. So District 34 has a population deviation of 2.71, so my next step would be, in evaluating this plan, are the relevant jurisdictions kept together, and so I was frankly surprised when Buchanan County was split given these population deviation numbers.

The parties also specifically stipulated to statistical evidence that showed population

deviations exceeding one percent in districts 34, 13, and 14 resulting from dividing

Buchanan County and Hazelwood. These basic facts were never in question but assumed

throughout litigation as the impetus for Appellants’ claims, as their opening statement

demonstrates. Finally, testimony was also adduced during trial that it was possible to draw

maps that did not divide Buchanan County or Hazelwood and still comply with the equal

population requirement. In presenting such evidence, Appellants’ expert testified “if you

wanted to exceed 1 percent, you had to follow the county and municipality lines, that is a

pretty clear requirement of subdivision (1).” The Secretary did not object but, instead,

agreed, introducing and submitting a proposed remedial senate map that specifically

16 addressed the Appellants’ alleged equal population violation. The Secretary’s remedial

map kept Hazelwood intact within one district and continued to divide Buchanan County

but by moving some voting precincts from district 34 to district 12 to ensure compliance

with the one percent deviation in the equal population requirement of section 3(b)(1). The

Secretary’s expert testified he continued to divide Buchanan County because “you can have

a split if it is below the 1 percent deviation.” He was then asked if he did this

“assum[ing] strict compliance with [Appellants’] propos[als]” and he answered,

“That is my understanding. You can have a 1 percent deviation … you can go up to 3

percent, assuming you are going up to 3 percent deviation in order to keep a county

intact.” This was all evidence bearing solely on the issue of equal population required

by section 3(b)(1) as applied to the Senate Map and demonstrates the issue of equal

population was tried by implied consent. See Smith v. City of St. Louis, 395 S.W.3d

20, 25 (Mo. banc 2013) (holding issue is tried by implied consent “when evidence is

offered, without objection by any other party, bearing solely on that issue”). In

short, compliance with the equal population requirement was clearly litigated and tried

to the circuit court, and no one can claim a lack of notice or prejudice from any perceived

failure to allege a violation of equal population in Appellants’ amended petition.

Appellants properly raised their constitutional challenge in their amended petition,

but, even if they had not done so, the testimony and evidence adduced and stipulated to at

the trial, the arguments to the circuit court, and the circuit court’s judgment itself show

both these highly intertwined claims were tried and presented to the circuit court, which

ultimately decided this issue in its judgment. Smith, 395 S.W.3d at 25. Accordingly, there

17 is no impediment to this Court reviewing Appellants’ irrefutable challenge to the Senate

Map.

In dividing Buchanan County and Hazelwood into separate senate districts, the

Senate Map both allows for a population deviation of greater than one percent and fails to

preserve communities. In so doing, the Senate Map violates the redistricting parameters

set forth in the Missouri Constitution. Accordingly, I would reverse the circuit court’s

judgment and remand the case for the court to bring the map into compliance as required

by article III, section 7(i).

___________________ W. Brent Powell, Judge