PER CURIAM.
Under article III, section 45 of the Missouri Constitution, the General Assembly enacted H.B. 193 to redistrict Missouri for the election of the United States House of Representatives. Two groups of plaintiffs filed declaratory judgment actions to challenge the constitutional validity of the congressional redistricting map in H.B. 193 (the Map), claiming that it failed to meet the constitutional requirements for compactness. The trial court ruled that the plaintiffs failed to prove that the Map violates the requirement in article III, section 45 that each district be "as compact ... as may be" and entered judgments in favor of the defendants. On appeal, the plaintiffs claim that the trial court's judgments erroneously interpret the constitutional standard for compactness and that the judgments are against the weight of the evidence.
This Court determines that the trial court did not err in its interpretation of the constitutional compactness standard because the standard does not require absolute precision in compactness and because mandatory and permissible recognized factors can impact the configuration of district boundaries. This Court further holds that the plaintiffs do not prevail on their claim that the trial court's judgment is against the weight of the evidence. This Court generally refuses to substitute its opinion for that of the trial court on disputed factual issues by re-weighing the evidence in a court-tried case. The parties strenuously disputed whether the challenged districts depart from the compactness principles and if they are "as compact... as may be," specifically whether minimal and practical deviations from compactness are supported by factors recognized by this Court. The trial court made credibility assessments and weighed the evidence at trial in reaching its judgments. Because this case involves judgments for the defendants, who have no burden of proof, and because neither party requested findings of fact that would assist in appellate review, this is not a case in which this Court should substitute its judgment for that of the trial court on the evidence regarding disputed factual issues.
Accordingly, this Court affirms the judgments of the trial court.
The Missouri Constitution provides that the General Assembly shall divide the
Two groups, the Pearson Plaintiffs and the McClatchey Plaintiffs
This Court consolidated the cases and decided Pearson v. Koster on January 17, 2012. See 359 S.W.3d 35 (Mo. banc 2012) (Pearson I). In Pearson I, this Court affirmed the trial court's dismissal of Plaintiffs' petitions on every claim except the claims regarding compactness. Id. at 40. This Court stated:
Id. This Court remanded the cases to the trial court for determination of the factual issues. Id.
On remand, the trial court held a trial to determine whether the districts are "as compact ... as may be." Mo. Const. art. III, sec. 45. Plaintiffs and Defendants made various stipulations, and both presented evidence regarding whether the challenged districts are "as compact ... as may be." After hearing the evidence, the trial court entered judgments in favor of both Defendants on February 3, 2012. It determined that the phrase "as compact... as may be" means that compactness cannot be achieved with absolute precision and permits districts to be drawn in multiple ways while still meeting the compactness requirement due to other factors. The trial court then found that, "[u]nder the standard and rationale announced by the Supreme Court, and the facts adduced at trial, the Plaintiffs have failed to prove that H.B. 193 is unconstitutional because it is not `as compact as may be.'" Plaintiffs appeal.
On appeal, the Pearson Plaintiffs and the McClatchey Plaintiffs assert multiple claims of error in the trial court's judgments. The Pearson Plaintiffs claim that the trial court erred in: (1) applying an improper standard for determining whether the Map is as compact as may be; and
This Court's decision in White v. Director of Revenue details the applicable standard of review for appeals of court-tried civil cases. 321 S.W.3d 298, 307-08 (Mo. banc 2010). The judgment of the trial court 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." Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The application of this standard of review varies depending on the burden of proof applicable at trial and the error claimed on appeal to challenge the judgment. See In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984). The reviewing court cannot review the judgment of a trial court properly under a given standard of review without considering the burden of proof governing the trial court's determination.
The burden of proof applicable at trial depends on the type of claim presented in the pleadings. This case involves a challenge to the constitutional validity of a statute. For a court to find that a statute is unconstitutional, the plaintiff must overcome a burden of proof that assumes constitutional validity. Mo. Prosecuting Attorneys v. Barton County, 311 S.W.3d 737, 740 (Mo. banc 2010). The statute will not be held unconstitutional unless the plaintiff proves that it "clearly and undoubtedly contravene[s] the constitution" and "plainly and palpably affronts fundamental law embodied in the constitution." Id. at 740-41 (internal quotations omitted); see also St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo. banc 2011). All doubts are "resolved in favor of the constitutionality of the statute." Barton County, 311 S.W.3d at 741 (internal quotations omitted).
In addition to the burden of proof, the reviewing court also must apply the proper standard of review for the error claimed on appeal. A claim that there is no substantial evidence to support the judgment or that the judgment is against the weight of the evidence necessarily involves review of the trial court's factual determinations. See White, 321 S.W.3d at 308. A court will overturn a trial court's judgment under these fact-based standards of review only when the court has a firm belief that the judgment is wrong. Id. A claim that the judgment erroneously declares or applies the law, on the other hand, involves review of the propriety of the trial court's construction and application of the law. Id. Implicit in these standards is the recognition that the trial court, in reaching its judgment, is in a better position to determine factual issues than an appellate court reviewing only the record on appeal. See id. at 308-09. In this regard, it is necessary for the reviewing court to treat differently questions of law and questions of fact.
This Court applies de novo review to questions of law decided in court-tried cases. StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 899 (Mo. banc 2006). With respect to such questions,
In reviewing of questions of fact, the reviewing court will defer to the trial court's assessment of the evidence if any facts relevant to an issue are contested. White, 321 S.W.3d at 308. A factual issue is contested if disputed in any manner, including by contesting the evidence presented to prove that fact. Id. As enunciated in White, 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. Id. Once contested, "a trial court is free to disbelieve any, all, or none of th[e] evidence," and "the appellate court's role is not to re-evaluate testimony through its own perspective." Id. at 308-09. The trial court receives deference on factual issues "`because it is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.'" Id. (quoting Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009)).
A claim of error on appeal may present a mixed question of law and fact. In such an instance, the reviewing court applies the same principles articulated above except that it is necessary to segregate the parts of the issue that are dependent on factual determinations from those that are dependent on legal determinations. "[W]hen presented with an issue of mixed questions of law and fact, a [reviewing court] will defer to the factual findings made by the trial court so long as they are supported by competent, substantial evidence, but will review de novo the application of the law to those facts." 5 AM.JUR. 2D Appellate Review § 631 (2012). For example, when the issue is whether Missouri courts have personal jurisdiction over a defendant, a reviewing court defers to the fact-finding court with regard to any facts that are essential to that determination (e.g., the intention to create and sustain contacts with Missouri); however, the ultimate question of whether the exercise of jurisdiction meets the standards of the Missouri long-arm statute and the constitution remains a legal question, which is reviewed independently on appeal. See Longshore v. Norville, 93 S.W.3d 746, 751-54 (Mo.App.2002); see also State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000) (applying de novo review to whether a defendant was "in custody" but deferring to the trial court with respect to facts essential to that determination); State v. Brooks, 185 S.W.3d 265, 273 (Mo.App.2006) ("While factual issues on motions to suppress often are mixed questions of law and fact, the trial court's superior capacity to resolve credibility issues is not dispositive of the `in custody' inquiry." (citations omitted)). Therefore, it is a matter of deferring to the fact-finder in its assessment of the facts and then applying de novo review in determining how the law applies to those facts.
As stated previously, review of the trial court's judgment upholding the constitutional validity of the Map requires consideration of the burden of proof at trial and the applicable standard of review. Although the McClatchey Plaintiffs do not challenge that they have the burden to show that the Map clearly and undoubtedly contravenes the constitution, Barton County, 311 S.W.3d at 740-41, they contend that, at a point in the trial, the burden of proof shifts to the Defendants. The Pearson Plaintiffs alternatively contend that review of the trial court's judgment should be de novo on the ground that this case largely consists of stipulated facts. Neither party is correct as to this Court's review of the trial court's judgment.
As stated in Pearson I, a redistricting case is "subject to proof and defenses in accordance with evidence as in any other lawsuit." 359 S.W.3d at 40. Applying general law, "[t]he person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitution." St. Louis Cnty., 344 S.W.3d at 712 (internal quotations and citations omitted). Although prior cases of this Court provide that statutes are "presumed" constitutional, a "presumption" is a term of art that denotes a specific meaning in the law. A presumption is a "standardized practice, under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts." McCORMICK ON EVIDENCE, section 337 (6th ed. 2006). The purpose behind stating that statutes are "presumed" constitutional is not to establish a presumption but instead to allocate the burden of proof to the plaintiff for its claim that a statute is unconstitutional — i.e., the plaintiff has the burden to show that a statute "clearly and undoubtedly violates the constitution." See St. Louis Cnty., 344 S.W.3d at 712 (internal quotations and citations omitted).
In their claim that Defendants fail to meet their burden of proof, the MCClatchey Plaintiffs erroneously state that Missouri law requires the burden of proof to shift to the state after a plaintiff makes an initial showing that a district could be more compact. Once the burden shifts, the state then would have to prove why the district is not substantially more compact. In support of this proposition, the McClatchey Plaintiffs cite the dissent in Preisler v. Kirkpatrick, which sought to shift the burden to the state in a challenge to the compactness of senate districts. See 528 S.W.2d 422, 436 (Mo. banc 1975) (Finch, J., dissenting), overruled in part by Pearson I, 359 S.W.3d at 39. Contrary to the McClatchey Plaintiffs' assumption, the majority of this Court did not shift the burden in that case, despite the inquiry into the subjective intent of the legislature at that time. See id. at 426; see also Pearson I, 359 S.W.3d at 40 (holding that a subjective test no longer applies and remanding
The McClatchey Plaintiffs also cite as support the United States Supreme Court's decision in Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). In relying on Karcher, the McClatchey Plaintiffs fail to recognize the distinction between the standard used by federal courts for challenges to redistricting maps under the United States Constitution and the standard for challenges under the Missouri Constitution. Under art. I, sec. 2 of the United States Constitution, the standard for population equality "requires that the State make a good-faith effort to achieve precise mathematical equality." Kirkpatrick v. Preisler, 394 U.S. 526, 530-31, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). If the plaintiff shows that a deviation from population equality is not part of a good-faith effort of the legislature, federal courts shift the burden of proof, and "the State must bear the burden of proving that each significant variance between districts was necessary to achieve some legitimate goal." Karcher, 462 U.S. at 730-31, 103 S.Ct. 2653. Unlike the federal population equality standard, the existence of good faith in the legislature or lack thereof is irrelevant under the requirements in the Missouri Constitution. In Pearson I, this Court expressly rejected the good faith standard and held that the applicable standard is the language of the constitution itself, which is an objective standard. 359 S.W.3d at 40.
It is Plaintiffs who seek a declaration that the Map is unconstitutional, and shifting the burden of proof conflicts with their ultimate burden to show that the Map "clearly and undoubtedly" contravenes the constitution. See Johnson v. State, 366 S.W.3d 11, 33 (Mo. banc 2012) (determining that plaintiffs failed to prove their case, because they "failed to prove that it is possible to achieve greater population equality and compactness when considering federal law requirements and other factors."). Placing the burden of proof on a plaintiff challenging a redistricting map is consistent with the framework used by nearly every state in the nation. The vast majority of states either have expressly rejected shifting the burden of proof
While federal courts apply a burden-shifting framework, they do so under a different constitutional standard, and there is no apparent rationale that supports a departure from the burden of proof applied by this Court in Johnson, at 32-33. Plaintiffs at all times have the burden of proving the Map is unconstitutional. The burden of persuasion and the burden of production never shift to the defendants. See Anchor Centre Partners, Ltd. v. Mercantile Bank, N.A., 803 S.W.2d 23, 30 (Mo. banc 1991); White, 321 S.W.3d at 305.
Mo. Const. art. III, sec. 45 provides the compactness requirement for congressional districts. It states:
The determination of whether the compactness requirement is satisfied by the Map involves the determination of a mixed question of law and fact. The meaning of the language in Mo. Const. art. III, sec. 45 is a question of law to which de novo review applies. Comm. for Educ. Equal. v. State, 294 S.W.3d 477, 488 (Mo. banc 2009) ("[T]he trial court's interpretation of the Missouri Constitution [is a] question[] of law given de novo review."). In contrast, determining whether the characteristics of a particular map satisfy the meaning of the "as compact ... as may be" requirement involves questions of fact.
Mo. Const. art. III, sec. 45 requires that the General Assembly draw the House districts according to census figures, making the districts: (1) contiguous territory; (2) as compact as may be; and (3) as nearly equal in population as may be. These requirements are mandatory and objective — each must be satisfied — although the language used in the requirements may allow some flexibility in their compliance. See Johnson, at 23-24. Plaintiffs claim that the trial court erred in defining the standard for the "as compact ... as may be" requirement, which this Court reviews de novo. See StopAquila.org, 208 S.W.3d at 899.
In Pearson I, this Court stated that "the applicable standard for a court in reviewing an article III, section 45 claim is the language of the constitution itself[.]" 359 S.W.3d at 40. This Court assumes that every word in the constitutional provision has effect and meaning. Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983). The primary rule is to "give effect to the intent of the voters who adopted the [provision]" by considering the plain and ordinary meaning of the words used. Keller v. Marion Cnty. Ambulance Dist., 820 S.W.2d 301, 302 (Mo. banc 1991); StopAquila.org, 208 S.W.3d at 902.
This Court must consider the phrase "as compact ... as may be" in its entirety in order to ascertain its meaning and also give effect to every word used. See Buechner, 650 S.W.2d at 613. A determination of whether a district fails to satisfy the requirement cannot be accomplished solely by inquiring if it is "compact," because the modifier "as may be" alters the meaning of that word. See Mo. Const. art. III, sec. 45. As with statutes, the construction of constitutional provisions is not to be a hyper-technical process. Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. banc 2007).
Accordingly, contrary to the urging of Plaintiffs, the test for whether a district is "as compact ... as may be" is not a two-part test. Instead, the test is a single inquiry as to whether, under the totality of the evidence, the challenged district is "as compact ... as may be." This test involves a determination of whether there is a departure from the principle of compactness in the challenged district and, if there are minimal and practical deviations, whether the district is nonetheless "as compact ... as may be" under the circumstances. See Pearson I, 359 S.W.3d at 40.
It is necessary to begin with the definition of the word "compact" in determining the meaning of the phrase "as compact ... as may be." Courts considering the definition of "compact" as used in the context of the reapportionment of districts have recognized two possible definitions. Some courts define "compact" as referring to "the physical shape or size of electoral districts," while others define it as referring to "closely united territory, a phrase not necessarily limited to physical dimensions." See Kurtis A. Kempter, Annotation, Application of Constitutional "Compactness Requirement" to Redistricting, 114 A.L.R.5th 311 (2003). A century ago, this Court adopted the latter definition, finding that "compact" for Missouri redistricting purposes means "closely united territory" and, in effect, rejecting the proposition that "compact" refers solely to physical shape or size. See Pearson I, 359 S.W.3d at 38 (quoting State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40, 61 (1912)).
Because the word "compact" does not refer solely to physical shape or size, a visual observation, although relevant, is
Further, modification of the word "compact" with the phrase "as may be" recognizes that "compactness ... cannot be achieved with absolute precision." Pearson I, 359 S.W.3d at 39. The existence of multiple districts prevents absolute compactness, as it would be with circular boundaries, because the boundary of one district must fit the boundary of another district, all within state territory lines. The "as may be" standard also recognizes that there are other recognized factors that affect the ability to draw district boundaries with closely united territory. These factors include the impact of the standards for contiguous territory and population equality. See Mo. Const. art. III, sec. 45; see also Pearson I, 359 S.W.3d at 38. By virtue of the Supremacy Clause, U.S. Const. art. VI, cl. 2, the districts also must comply with the United States Constitution and federal laws, such as the Voting Rights Act. See Johnson, at 27-28.
In addition, the phrase "as may be," modifying the word "compact," permits consideration of other recognized factors that inherently are included within the constitutional standards governing the reapportionment process, although not expressly articulated as a separate requirement in the constitution. See Johnson, at 27-28. These factors were identified by this Court in Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427 (1955), Preisler v. Hearnes, 362 S.W.2d 552 (Mo. banc 1962), and Preisler v. Kirkpatrick, 528 S.W.2d 422. In Doherty, this Court distinguished the process of city officers dividing St. Louis into districts from the process of redistricting the state because "it is obvious that it is much easier for them to make compact districts than for a legislature or commission restricted to county lines (or following town, ward or other district lines)...." 284 S.W.2d at 432. In Hearnes, a case challenging congressional districts, this Court stated that:
362 S.W.2d at 556-57. The Court also stated that "it is not improper to consider the precedents of allocation of counties to existing districts in deciding the composition of new enlarged districts." Id. at 557.
Later, this Court in Preisler v. Kirkpatrick cited the United States Supreme
As provided in these cases, the language used in the constitutional requirements implicitly permits consideration in the redistricting process of population density; natural boundary lines; the boundaries of political subdivisions, including counties,
Interpreting the language "as may be" as allowing for consideration of other recognized factors is consistent with the United States Supreme Court's requirement for congressional districts to have population equality "as nearly as is practicable" under its interpretation of the Equal Protection Clause in the United States Constitution. See Reynolds, 377 U.S. at 577, 84 S.Ct. 1362. The federal standard permits "minor variations which `are based on legitimate considerations incident to the effectuation of a rational state policy.'" Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). As with this Court, the United States Supreme Court recognizes that legitimate considerations include recognition of natural boundary lines, recognition of historical district boundary lines, and respect for boundaries of political subdivisions.
This Court's precedent does not hold that constitutional requirements can be disregarded to consider other factors but instead recognizes that the constitutional requirements themselves incorporate such considerations by use of the standard "as may be." Plaintiffs recognized that the constitutional requirements incorporate other factors by presenting evidence at trial and making arguments on appeal regarding the boundary lines for historical district maps, counties, and political subdivisions. As part of the standard for the constitutional requirements, federal law and the other recognized factors are in fact of constitutional significance, and this Court recognizes that in its precedent. Each of these factors plays a role in determining the fact-based inquiry of whether a district is "as compact ... as may be." If a district seems not to be composed of closely united territory because of minimal and practical deviations, the district is still "as compact ... as may be" if those deviations are due to mandatory and permissive factors. "[M]aps could be drawn in multiple ways, all of which might meet the constitutional requirements." Id. at 39.
Under this construction of the phrase "as compact ... as may be," the trial court did not erroneously declare or apply the compactness requirement in Mo. Const. art. III, sec. 45. The trial court's judgment, which determined that absolute precision is not required and that other factors may affect compactness, is consistent with the proper construction of the constitutional provision.
Plaintiffs assert that the trial court's judgment, which determined that Plaintiffs failed to meet their burden of proof that the Map is unconstitutional, is against the weight of the evidence. This Court will overturn a trial court's judgment on the ground that it is against the weight of the evidence — with the term "weight" referring to the probative value (not quantity) of the evidence — only if it has a firm belief that the judgment is wrong. White, 321 S.W.3d at 308-09. The weight of the evidence standard from Murphy v. Carron was discussed in State Farm Mut. Auto Ins. Co. v. Allen: "The purpose of the [`weight of the evidence'] rule should be read in context. The purpose of the rule is to give the findings of fact of the trial court the approximate effect of a jury verdict, especially when weighing and credibility are involved." 744 S.W.2d 782, 786 (Mo. banc 1988) (footnote omitted). On finding that the record in State Farm Mut. Auto Ins. Co. showed a factual dispute regarding insurance policy coverage, this Court was "not willing to substitute [its] judgment for that of the trial court" by
This Court rarely has reversed a trial judgment as against the weight of the evidence under the Murphy v. Carron standard. In Buckner v. Jordan, for instance, this Court reversed a judgment in favor of a plaintiff as against the weight of the evidence. 952 S.W.2d 710, 712 (Mo. banc 1997). The case involved a determination of a father's child support obligation, and the circumstances of the case revealed that the trial court failed to consider an affidavit by the mother that showed her increased income. Id. Because of the complete failure to consider the affidavit by the trial court, this Court weighed the evidence and determined that the trial court erred in its judgment. See id.
This case does not present the rare circumstance when the trial court's judgment should be reversed as against the weight of the evidence. Significantly, Plaintiffs' weight of the evidence claim challenges a judgment in favor of Defendants. Defendants have no burden of proof in this case and were not required to present any evidence to prevail. See State Farm Mut. Auto. Ins. Co., 744 S.W.2d at 786 (refusing to weigh evidence in court-tried case in which the trial court's judgment was for the defendant). Plaintiffs' claim that the challenged districts were not "as compact ... as may be" required the trial court to weigh evidence and make factual determinations. See Pearson I, 359 S.W.3d at 40 ("[I]t is a question of fact, yet to be tried, whether those districts are `as compact and nearly equal in population as may be.'"). The parties had the ability to request written findings of fact to identify the precise issues they wanted the trial court to determine for each district, but neither party made a proper request.
The Map was admitted into evidence by stipulation of the parties. Plaintiffs challenged the constitutional validity of districts 3, 5, and 6.
As discussed above, Plaintiffs, at all times, bore the burden of proving that the Map clearly and undoubtedly contravened the constitution. Because the standard for determining whether a district is drawn "as compact ... as may be" includes whether any minimal and practical deviations were a result of recognized factors that may affect the district boundaries, Plaintiffs must prove that the boundaries of districts 3, 5, and 6 depart from the principles of compactness and that any deviations were not minimal or practical deviations resulting from applying the recognized factors. Accordingly, Plaintiffs' showing must account for any minimal and practical deviations occurring as a result of: (1) the interrelationship in standards for the population equality and compactness requirements; (2) the contiguity requirement; (3) federal laws, including the Voting Rights Act; and (4) the recognized factors of population density, natural boundary lines, boundaries of political subdivisions, and historical boundary lines of prior redistricting maps. While the existence of evidence regarding each of these factors satisfies Plaintiff's burden of production, Plaintiffs nonetheless may fail to satisfy their burden of persuasion with the trier of fact that, based on the evidence presented, the challenged districts clearly and undoubtedly contravene the constitution.
Plaintiffs claim that the trial court's judgments finding that they failed to meet their burden of proving that district 3 is not "as compact ... as may be" is against the weight of the evidence. Evidence presented at trial could support the trial court's determination that the minimal and practical deviations in district 3 are supported by Voting Rights Act considerations.
The parties presented evidence that the boundaries for districts 1 and 2 were drawn in a circular manner to comply with the Voting Rights Act by boosting the minority population of district 1 and generally protecting against minority "vote dilution." The purpose of the Voting Rights Act is to ensure that members of a protected class have the same opportunity as other citizens to participate in the political process and elect representatives of their choice. 42 U.S.C. § 1973(b) (2000). Defendants' expert, Dr. Hofeller,
Plaintiffs claim that the trial court's judgments finding that they failed to meet their burden of proving that district 5 is not "as compact ... as may be" is against the weight of the evidence. In assessing the evidence regarding whether district 5 is sufficiently compact, the trial court considered the stipulations and evidence presented by the parties during the three-day trial. The parties stipulated to the Map and the statistical evidence regarding compactness, population equality, and racial composition of the relevant districts. While these stipulations of fact relieved the parties from proving the matters stipulated, In re Marriage of Hendrix, 183 S.W.3d 582, 591 (Mo. banc 2006), the stipulations do not prove, as a matter of law, that district 5 does not meet the constitutional standard for compactness. Some of the stipulated evidence is favorable to a finding that district 5 is "as compact ... as may be." Additionally, through evidence presented at trial and the cross-examination of Plaintiffs' expert, Dr. David C. Kimball, Defendants zealously disputed multiple factual issues relevant to determining whether district 5 was "as compact... as may be."
The trial court had evidence before it, the Map, showing that district 5 is not in the shape of a circle or square, which the experts testified are the most compact shapes. If the constitutional standard for compactness were merely that a district be circular or square, the visual inspection of district 5 would demonstrate that it is neither.
The parties stipulated to the results of eight statistical tests measuring compactness.
Defendants presented the testimony of Dr. Hofeller regarding the compactness of district 5. Dr. Hofeller testified as to the principles relevant to determining compactness, the meaning of the phrase "as compact ... as may be" and opined as to whether district 5 meets that standard.
Both Drs. Kimball and Hofeller testified that the same eight statistical measures are used to evaluate compactness. These measures were discussed at length in the redistricting articles admitted into evidence at trial. The parties stipulated as to how district 5 scored on each of these statistical measures. District 5 scored well on the measures of compactness that consider area in combination with population. Plaintiffs presented no other evidence regarding population density.
There was also evidence produced at trial disputing whether the boundaries for district 5 were affected by historical district boundaries. This evidence consisted of the prior redistricting maps shown in Appendix A. These maps demonstrated that a portion of Jackson County historically has been carved out of district 5 and appended to other districts (both districts 4 and 6). The current Map only slightly expands that carved-out portion. Plaintiffs' expert, Dave Rolland, a constitutional attorney, was questioned about these historical maps at length during both direct examination by Plaintiffs and cross-examination by Defendants.
Finally, evidence was presented regarding the effect of political subdivision boundaries on the boundaries for district 5, including both urban and rural areas of Jackson County. The evidence could support a finding by the trial court that, while district 5 divides certain political subdivisions, it maintained the boundary lines of other subdivisions, specifically municipalities north of the Missouri River. For example, the boundary for district 5 generally follows the boundary for Gladstone, which is surrounded by Kansas City. The evidence also showed that district 5 includes a portion of Clay County, including urban portions of Kansas City that continue from Jackson County into Clay County. The trial court could have found that the boundaries of the Map were drawn in consideration of the legitimate factor of keeping a greater portion of Kansas City in district 5.
This record reveals factual disputes regarding whether the deviations in the boundary of district 5 were minimal and practical deviations that could have been drawn to take into account certain recognized factors. See State Farm Mut. Auto. Ins. Co., 744 S.W.2d at 787. The trial court was free to consider the weight and credibility of the evidence on the record. From that assessment, the trial court could have objectively determined that Plaintiffs failed to prove clearly and undoubtedly that district 5 is not as "compact... as may be." This Court will not substitute its judgment for that of the trial court by re-evaluating the credibility of that evidence in this case. Id.
Because the trial court did not err in its judgments regarding district 5, and because the boundary in district 5 has a direct correlation to the boundary in district 6, the same analysis applies. Therefore, this Court finds no error in the trial court's judgment regarding district 6.
Accordingly, this Court finds no error in the trial court's judgments. The judgments of the trial court are affirmed.
BRECKENRIDGE and FISCHER, JJ., and MITCHELL and LYNCH, Sp.JJ., concur.
PRICE, J., dissents in separate opinion filed; STITH, J., and ELLIS, Sp.J., concur in opinion of PRICE, J.
TEITELMAN, C.J., RUSSELL and DRAPER, JJ., not participating.
The Missouri Congressional Map of 1921 placed the northwestern and central-western wards of Kansas City into a district with Platte, Clinton, Clay, and Ray counties. The southwestern wards of Kansas City and eastern and southern Jackson County comprised their own discrete district.
The Congressional map of 1933 created a separate district for metropolitan Kansas City, and placed the remainder of Jackson County in its own Congressional District.
The map of 1943 is the same as the 1933 map.
The map of 1952 continued to give the Kansas City portion of Jackson County its own district (the fifth) but united the remainder of Jackson County with Lafayette, Cass, Johnson, Henry, Davies, Vernon, and Barton counties (the fourth district).
The map of 1962 expanded the fifth district, and, added Henry and Pettis Counties to the fourth, while taking Barton County away from that district.
The map of 1972 expanded the fifth district southward, so that approximately the western third of Jackson County's geographic area was now one district. The map added Barton back into the fourth district, and it also added St. Clair, Hickory, Benton, Morgan, Cooper, Howard, and Saline counties to that district.
The map of 1982 split Jackson County in half, geographically. The eastern half of Jackson was united with numerous other counties to the south and east.
The map of 1992 created the downward protrusion. In this map, Jackson County was split between three different Congressional Districts. The bottom southeast corner continued to be untied with the fourth district. The downward protrusion, which is shaped somewhat like the state of Massachusetts, except with the thin hook extending southward instead of eastward, was united with counties in the northwest and the north-central part of Missouri (the sixth district). The remainder of Jackson County comprised district five.
The map.of 2002 extended district five to the southeast corner of Jackson County. Under this map, the downward protrusion continued to be united with the sixth district (northwest and north-central Missouri). Only a tiny peninsula of Jackson County remained united with the district four (west central Missouri). In addition, the 2002 map extended district five to include an irregularly shaped portion of Cass County (south of metropolitan Kansas City).
The Map in 2012 extends the downward protrusion southward, so that district six contains more of Jackson County. The fifth district picks up the small portion of Jackson County that had continued to be in the fourth district, and it also extends to the east and slightly to the north to include Ray, Lafayette, and Saline counties. A portion of Cass County goes from the fifth district back to the fourth.
ZEL M. FISCHER, Judge, Concurring Opinion.
I concur in the per curiam opinion's holding, affirming the circuit court's ruling that the Plaintiffs failed to demonstrate that HB 193 "clearly and undoubtedly" contravened the constitution. I write separately to clarify the standard of law applicable to the issues presented to this Court in this case and address some of the concerns voiced by the dissenting opinion.
In Pearson I, this Court held that challenges to the compactness of a district are justiciable and that the standard a circuit court should apply in reviewing such a challenge is the language of section 45 itself. Pearson v. Koster, 359 S.W.3d 35, (Mo. banc 2012) (Pearson I). Following remand and a factual finding, the circuit court upheld the General Assembly's proposed redistricting map in this case. The circuit court entered a judgment concluding,
In my view, if due deference is given to the circuit court's evaluation of the credibility of the witnesses and the probative value of the evidence as required by law, then the circuit court's judgment should be affirmed. The dissenting opinion's position that this Court (or, presumably, under its analysis any intermediate appellate court) gets to determine the probative value of the evidence is unprecedented.
The pertinent part of Pearson I instructed the circuit court on remand as follows:
Id. at 39.
As long as the districts comply with these constitutional requirements, the circuit court shall respect the political determinations of the General Assembly, which allow for "maps [that] could be drawn in multiple ways, all of which might meet the constitutional requirements." Id. The circuit court applied the standards as instructed by this Court. and now this Court reviews the "proof and defenses in accordance with evidence in any other lawsuit." Id. at 40.
The dissent fails to articulate a standard for compactness beyond a visual observation, stating that "[w]here, however, a nonpartial and objective observer can plainly see that a district is noncompact, deviations from compactness are not minimal." The dissenting opinion continually uses phrases such as "bizarrely shaped" and "visually jarring" to support its position. However, if a pure cursory glance at the map, by itself, were sufficient to determine whether the constitutional standard of "compact as may be" were met, the remand from Pearson I would not have been necessary at all. In fact, this is contrary to Pearson I, which specifically states that "compactness and numerical equality cannot be achieved with absolute precision" and that "an appropriate standard of review
The standard of review for any court-tried case is that this Court will affirm the judgment of the circuit court unless it misapplied or erroneously declared the law, or the judgment is not supported by substantial evidence, or the judgment is against the weight of the evidence. JAS Apartments, Inc. v. Naji, 354 S.W.3d 175, 182 (Mo. banc 2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)); see also Rule 84.13(d). If the issue to be decided is one of fact, as is presented in this case, this Court determines whether the judgment is supported by substantial evidence and whether the judgment is against the weight of the evidence. Id. "Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is `against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Id. When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party's uncontradicted or uncontroverted evidence. Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo.1963). If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010). "Generally, the party not having the burden of proof on an issue
This standard for reviewing an against-the-weight-of-the-evidence challenge does not change just because the evidence is derived from stipulations, exhibits, and documents. "In other words, even though this Court has the same opportunity to review the evidence as does the circuit court, the law allocates the function of fact-finder to the circuit court." MSEJ, LLC v. Transit Cas. Co., 280 S.W.3d 621, 623 (Mo. banc 2009). "When the facts of the case are contested, this Court defers to the circuit court's assessment of the evidence." White, 321 S.W.3d at 307. While a party can contest evidence by putting forth evidence to the contrary, a party can also contest evidence by cross-examination or by pointing out internal inconsistencies in the evidence. Id. at 308.
In a court-tried case, "[i]t is the parties' duty to specifically request findings of fact and conclusions of law, identifying the issues they wish the court to decide." Hammons v. Ehney, 924 S.W.2d 843, 849 (Mo. banc 1996). "Merely submitting proposed findings to aid the court does not trigger the court's duty to make findings of fact and law." Id. Neither party in this case requested findings of fact from the circuit court. Therefore, "[a]ll fact issues upon which no findings are made shall be considered as having been found in accordance with the result reached."
There are two sets of plaintiffs challenging the Map in this case. The Pearson Plaintiffs did not even raise an against-the-weight-of-the-evidence challenge in their brief to this Court. The McClatchey Plaintiffs did raise an against-the-weight-of-the-evidence challenge in their point relied on, dependent on the finding that "a reasonable person would find that the district could be made substantially more compact without adverse consequences to other districts or other constitutional or practical considerations," and the McClatchey Plaintiffs tried their case on a standard that adopted a shifting of the burden to the State to "justify deviations from reasonable compactness." This Court declines to shift the burden to the State, although the dissenting opinion implicitly adopts such a burden shifting when it states that "there is little probative evidence that supports finding the Map compact."
The circuit court ruled that the Plaintiffs had failed to present credible or probative evidence that satisfied their burden of proof in demonstrating that H.B. 193 "clearly and undoubtedly" contravened the constitution.
The dissenting opinion does not give due deference to the circuit court's determination of the credibility of the witnesses and the circuit court's evaluation of the probative value of the evidence as required by this Court's well-settled case precedents and court rules. The omission of material, favorable evidence from the weighing process strips the dissenting opinion's attempted demonstration that it has a firm belief that the judgment is wrong of any analytical value or persuasiveness.
The proper inquiry on appeal is whether the evidence introduced at trial leaves this Court with a firm belief that the circuit court's judgment that the Plaintiffs failed to satisfy their burden is against the weight of the evidence. See Naji, 354 S.W.3d at 182.
An against-the-weight-of-the-evidence challenge requires constant acknowledgement
Because the circuit court was free to disbelieve all testimonial evidence related to whether districts five and six are as compact as may be, only a visual inspection of the Map remains to weigh on that issue. In Pearson I, however, this Court determined that the Map was insufficient evidence; it does not inform as to population density, history or traditional communities of interests, or other circumstances the legislature may consider when drawing districts. The absence of evidence found credible by the circuit court in these circumstances supports the circuit court's determination that "Plaintiffs have failed to prove that H.B. 193 is unconstitutional because it is not `as compact as may be.'"
The dissenting opinion fails to apply the standard of review required by this Court's recent decision in White v. Dir. of Revenue or give due deference to the circuit court's function to have adjudged the probative value of the evidence and the credibility of the witnesses in weighing the evidence. Following the "rule of law" includes not only stating the appropriate standard of review but also applying the appropriate standard of review based on the record. Properly doing that, this is not a close case. I fully concur in the principal opinion.
WILLIAM RAY PRICE, JR., Judge, Dissenting Opinion.
Article III, section 45 of the Missouri Constitution requires the General Assembly to redraw districts for the election of delegates to the United States House of Representatives every 10 years. To protect Missouri voters from political gerrymandering, the drafters of the constitution expressly required that all districts "be composed of contiguous territory as compact and nearly equal in population as may be." This Court recently reaffirmed that legal challenges to congressional redistricting maps based on article III, section 45's compactness requirement are justiciable. Pearson v. Koster, 359 S.W.3d 35, 39 (Mo. banc 2012) (Pearson I). Nevertheless, a majority of the Court today refuses to enforce article III, section 45.
By per curiam opinion, the Court upholds a map with a teardrop-shaped oddity that places 79,518 residents from what otherwise would be district 5 into district 6. The map replaces those voters by adding 80,245 residents from Ray, Lafayette, and Saline counties (or 73,731 residents from a portion of Clay County) to district 5.
The per curiam justifies its decision without articulating a clear and definite test for the enforcement of article III, section 45 and refuses to analyze the evidence below, despite appellants' against-the-weight-of-the-evidence challenge. I dissent.
Two types of evidence were presented to the trial court. There was both stipulated evidence and opinion testimony. The parties stipulated to the HB 193 redistricting plan, its representative form ("the Map"), a number of alternative maps, population and demographic statistics, and statistical measurements of compactness.
The Map, shown above, is composed of eight districts. All of the districts are composed of contiguous territory and are roughly equal in population.
On the western side of Missouri, the Map carves out a portion of the Kansas City suburbs in Jackson County and places it in district 6, creating a bizarre shape
Demographically, 22 percent of district 5's population is African-American. Less than 4 percent of district 6's population is African-American, and 4.6 percent of district 4's population is African-American.
Each of Plaintiffs' proposed alternative maps, shown below, also divides Missouri into eight congressional districts:
As for the opinion evidence, the parties called two witnesses to testify and to interpret the statistical scores of compactness tests. Plaintiffs called David C. Kimball, Ph.D. He testified that, in his opinion, "the HB 193 map is not as compact as may be," citing the teardrop shape carved out of district 5. Dr. Kimball analyzed each map's scores on the compactness tests and compared HB 193 with the alternative maps, on both a map-wide basis and between individual districts. He said that Pearson Alternative 2 scored as more compact than the HB 193 Map on seven of eight statistical measures of compactness in a mapwide comparison. Similarly, the proposed district 5 in both the Pearson Alternative 2 map and McClatchey Alternative map scored as more compact on all eight measures than the HB 193 Map's district 5.
Defendants called as an expert witness Thomas B. Hofeller, Ph.D. Dr. Hofeller testified that, in his expert opinion, the HB 193 Map and each of its districts are compact, although he stated that there is no professional consensus as to what constitutes compactness. He did opine that a hypothetical noncompact district "would have significant indentations and protrusions."
Although he admitted that he had not conducted any exhaustive study, Dr. Hofeller stated that if HB 193 were invalidated, it would "be the most compact map ever invalidated by any court in America." When asked for the basis of this statement, Dr. Hofeller replied that he knew of no Missouri maps ever to be adjudicated noncompact.
Dr. Hofeller testified that different states' districts are unlikely to achieve comparable degrees of compactness, but nevertheless compared HB 193 with districting maps from other states and testified that HB 193 was more compact. Although he compared HB 193 to 10 other states' maps, Dr. Hofeller never opined as to whether the comparison districts would be considered "compact as may be" under Missouri law.
Finally, Dr. Hofeller also interpreted the statistical evidence from the compactness tests. Comparing HB 193 with Pearson Alternative 2 on a map-wide basis, Dr. Hofeller admitted the alternative scored better on seven of eight statistical measures but said that none of the differences were significant. Analyzing district 5 separately, Dr. Hofeller testified that the McClatchey Alternative district 5 scored as more compact than the HB 193 Map's district 5 on all eight tests. For all eight
Dr. Hofeller gave no explanation for the shape of HB 193's district 5. No other evidence was presented regarding the shape of district 5.
At the end of the trial, the trial court ruled that "the Plaintiffs have failed to prove that HB 193 is unconstitutional because it is not `as compact as may be.'" Appellants attack this judgment as against the weight of the evidence.
This Court in Pearson I construed article III, section 45:
359 S.W.3d at 40 (citation omitted).
In Pearson I, this Court held that the constitutional provisions are mandatory and objective. Id. The Court also recognized that the legislature may exercise discretion when redistricting, so long as constitutional commands are followed. Id. Pearson I, however, reiterated that the constitutional question is separate from any inquiry into the minds of the legislature or any analysis as to the exercise of legislative discretion. The reason is simple: Article III, section 45 was enacted "to guard, as far as practicable, under the system of representation adopted, against a legislative evil commonly known as `gerrymander,'...." Id. at 38 (quoting Barrett, 146 S.W. at 61). The constitution, thus, "require[s] the Legislature to form districts, not only of contiguous, but of compact or closely united, territory." Id. (quoting Barrett, 146 S.W. at 61).
The constitution must be interpreted to comport with the intent of its drafters. Keller v. Marion Cnty. Ambulance Dist., 820 S.W.2d 301, 302 (Mo. banc 1991). "Had the framers of the Constitution intended that the Legislature should apportion the state into districts according to its own free and untrammeled will, then they would not have used the words of restriction...." Barrett, 146 S.W. at 54. Discretionary factors cannot be read into the constitutional fabric if doing so would functionally erase the requirement that districts be compact. See Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983) ("[E]very word in a constitutional provision is assumed to have effect and meaning; their use is not mere surplusage.").
The majority today cites to dicta from Johnson v. State, 366 S.W.3d 11 (handed down concurrently), for the proposition that the legislature may draw districts whose constitutional validity is gauged according to the presence of "other recognized factors." It states that these non-constitutional factors may include natural and historic boundary lines and population density. See Johnson at 29-30. But neither Johnson nor the per curiam here explain how the use of such discretionary factors can be squared with the objective constitutional standard set out in Pearson I. The folly of the dicta stated in Johnson is fully set out in the concurring opinion there and need not be restated here.
The per curiam opinion confuses legislative discretion in its reasons for redrawing district lines with the article III, section 45 constitutional requirements that limit the legislature's discretion. When redistricting, the legislature may consider factors like those proposed by the majority, such as natural and historic boundaries, population density, or other "traditionally recognized factors." However, these do not make the map "compact as may be" and, thus, constitutionally compliant. Rather, such a map is "compact as may be" only where federal law or other requirements
Pearson I did recognize the importance of preserving county boundaries where possible: "As long as the districts comply with these constitutional requirements, the circuit court shall ... allow for minimal and practical deviations required to preserve the integrity of the existing lines of our various political subdivisions." Id. at 40. Where, however, a nonpartial and objective observer can plainly see that a district is noncompact, deviations from compactness are not minimal. See id. (finding the compactness of district 5 to be "particularly suspect, as can be confirmed by any rational and objective consideration of [its] boundaries."). Here, the deviations from compactness result in the breach of major political subdivisions rather than the preservation of boundary lines.
Even under the new "standard" articulated by the per curiam opinion, the trial court judgment must be analyzed to see if it is against the weight of the evidence. The per curiam opinion attempts to sidestep its responsibility to weigh the evidence in two ways. First, it exaggerates how rarely Missouri appellate courts reverse judgments as against the weight of the evidence. Second, the per curiam opinion asserts that, because Plaintiffs had the burden of proof, they automatically lose their against the weight of the evidence challenge. Neither argument justifies the per curiam opinion's failure to weigh the evidence.
"Against the weight of the evidence" is an appellate standard of review that has been in use in Missouri for more than a century. See, e.g., Moore v. Moore, 4 Mo. 421, 423 (1836); J. & W. McDowell v. Shields & Bolton, 12 Mo. 441, 442 (1849). Murphy v. Carron affirmed the use of this standard 35 years ago. On appeal from a judgment in a bench-tried case, "the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) (emphasis added). This Court must look at each piece of evidence, weigh the probative value of that evidence, and determine whether the trial court judgment should stand.
The majority claims that appellate courts "rarely" reverse trial court judgments for being against the weight of the evidence. But reported cases show that reversal on this ground occurs regularly.
The argument that Plaintiffs should automatically lose their against the weight of the evidence challenge because they bore the burden of proof also misses the mark. This Court does not "refuse" to weigh the evidence when a party bearing the burden of proof in a case raises that point. The majority cites State Farm Mut. Auto. Ins. Co. v. Allen, 744 S.W.2d 782, 786-87 (Mo. banc 1988), for this proposition, but that case did not announce such a rule. Rather, the State Farm Court weighed the evidence and decided that the trial court judgment was not against the weight. That the trial court's judgment had been for the defendant did not figure into the analysis.
The result of an against the weight of the evidence challenge depends on what evidence was before the trial court. Citing White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010), the per curiam opinion argues that the lack of factual findings at the trial court level prevents this Court from reviewing the weight of the evidence. "[W]hen there are no factual findings, the evidence shall be considered as having been found in accordance with the result reached." Id. at 305 (quotation marks omitted). But White also holds that "when the evidence is uncontested no deference is due to the trial court's findings. Then, the issue is legal and there is no finding of fact to which to defer." Id. at 307 (citations omitted). Here, all the material facts were stipulated and, thus, uncontested. Consequently, lack of factual findings does not short-circuit this Court's review of the weight of the evidence.
Utilizing the above principles and weighing the probative value of the evidence before the trial court, the trial court's judgment in favor of Defendants was against the weight of the evidence. The probative evidence tending to show district 5 is not compact weighs in favor of finding for Plaintiffs. Most importantly, the stipulated Map shows the bizarrely shaped districts of 5 and 6 because of the teardrop-shaped carve-out. The borders of the district are not only visually jarring; they also divide communities. The teardrop splits Jackson County between districts 5 and 6; the teardrop also tears apart the cities of Blue Springs, Independence, Lee's Summit, and Oak Grove, placing pieces of each community into both districts.
The stipulated population numbers and the inferences from the Map also show that the districts are not compact. The teardrop removes 79,518 people from Jackson County, which otherwise would be district 5, and places them in district 6. The Map then replaces those people by adding 80,245 citizens from Ray, Lafayette, and Saline counties. District 5 also absorbs 73,731 people from the southwestern corner of Clay County. The displacement of more than 150,000 Missouri voters from two otherwise-compact voting districts cannot be swept under the rug as a "minimal and practical deviation" from compactness. See Pearson I, 359 S.W.3d at 40.
Plaintiffs introduced alternative maps that show Missouri can be divided into eight districts that are significantly more compact while still respecting the mandatory principles of contiguity, equal population, and compliance with federal laws. These alternative maps did not have carve-outs as egregious as that in district 5 of the Map. These maps are highly probative evidence of the noncompactness of the HB 193 Map.
Both parties stipulated to the admission of each map's scores on eight compactness
In contrast, there is little probative evidence that supports finding the Map compact. There was no evidence, testimonial or otherwise, that explained the shapes of districts 5 and 6 as they appear in the Map.
Evidence presented at trial also included historic district boundary lines from prior districting maps. See per curiam Appendix A. The majority believes districting maps from every decade since the 1920s serve as evidence of prior boundary lines on which the legislature may have relied in drawing HB 193. The per curiam notes that the 1992 map created a "downward protrusion" in district 5 that remained in the 2002 map. However, these prior maps are not compelling. First, the protrusion created in 1992 is not in the same location and is not the same shape as the egregious teardrop carve-out that divides Jackson County in HB 193. Second, these maps were never adjudicated to be compact. A map that could be unconstitutional cannot be strong evidence to support finding another map constitutional, much less outweigh the rest of Plaintiffs' probative evidence.
Each party's expert witness also testified as to his personal opinion of the compactness of HB 193 Map. Plaintiffs' witness testified that the Map is not as compact as may be, citing the teardrop in district 5. Defendants' expert testified that the map was compact. Because the statements by the parties' witnesses were merely conclusionary statements of opinion and law, not fact, delving into an area that is in the sole province of the Court to determine, their opinions carry little weight.
Specifically weighing against the value of Dr. Hofeller's conclusion was his statement that if found invalid, HB 193 would be the most compact map ever adjudicated to be noncompact. As the basis for this statement, Dr. Hofeller said he knew of no map to ever be adjudicated noncompact in Missouri. To the contrary, this Court held several state senatorial districts to be noncompact in both Barrett, 146 S.W. 40, and Kirkpatrick, 528 S.W.2d 422. Barrett found eight districts to be noncompact.
Kirkpatrick held two districts to be noncompact. 528 S.W.2d at 427.
Compare districts 5 and 6, the congressional districts at issue in this case, shown below:
After weighing the evidence before the trial court, the strong evidence in favor of non-compactness includes the Map itself (this includes the irregular boundaries of the districts, the division of cities between districts 5 and 6, and the unexplained inclusion and exclusion of citizens from Jackson, Clay, Ray, Lafayette, and Saline counties); the alternative maps; and any slight value of the statistical compactness test scores. Additionally, the teardrop distortion of districts 5 and 6 is worse than the distortions in the districts that this Court held to be noncompact in Barrett and Kirkpatrick.
The only evidence that weighs in favor of finding the Map compact is Defendants' expert's testimony and the prior districting maps. The expert's testimony receives little weight because it was a mere statement of opinion and law. The prior districting maps are lacking in probative value because they are unadjudicated, meaning they may be unconstitutional themselves, and they do not exhibit districts of the same shape as those present in HB 193. Nor has the per curiam explained how those maps in any way justify the teardrop at issue here. The testimony and prior maps cannot outweigh the very strong evidence tending to show the Map is not compact.
Rather than weighing the evidence before the trial court or looking to previously adjudicated maps from Barrett and Kirkpatrick, the majority holds that Plaintiffs fail to show that the Map was not influenced by "other recognized factors." The per curiam believes Plaintiffs must prove the Map's noncompactness is not a "minimal or practical" deviation that occurs from the legislature taking into account "other recognized factors" such as "population density; natural boundary lines; the boundaries of political subdivisions, including counties, municipalities, and precincts; and the historical boundary lines of prior redistricting maps." Per curiam op. at 50, 53.
The majority does not define what the factors mean or how they relate to a plaintiff's burden in a compactness challenge. Take, for example, the majority's application of the "other recognized factor" of population density. Immediately after noting that compactness test scores fall on a continuum and that no one score may determine a district is "compact," the majority states that "[d]istrict 5 scored well on the measures of compactness that consider area in combination with population." Op. at 56 (emphasis added). The majority then states Plaintiffs presented no other evidence regarding "population density" and its alleged effect on the shape of district 5.
Multiple problems arise from the majority's assessment of this "evidence." First, this Court cannot determine that district 5 scored "well" when even experts cannot state what constitutes a good score on the compactness test. Second, the majority never defines what "population density" means in relation to compactness of districts and Plaintiffs' burden. Third, the majority provides no instruction as to what other evidence Plaintiffs could or should submit relating to population density. Finally, there is no evidence that the General Assembly considered "population density" (or "historical boundary lines;" see below) in drawing the map, or how such a subjective consideration could factor into an objective standard of review.
The majority fails to provide a definition or other guidance as to the factor "historical boundary lines" as well. Although neither the parties nor the drafters of the Map provided evidence as to the reasons for its borders, the majority finds there "was evidence" disputing whether the boundaries of district 5 were affected by "historical district boundaries." The majority says this Map "only slightly expands [the] carved out portion" of a protrusion in Jackson County in the 2002 map. But it is illogical for "historical district boundaries" to have constitutional signification if a new map changes those old boundaries. Further, the majority does not address how different boundary lines in a new map can be for it no longer to be influenced by the factor of historical boundary lines. Additionally, just because there "was evidence" as to the existence of historical maps does not establish that the evidence was probative or even relevant.
An overarching problem is that the majority does not even require the "other recognized factors" to be uniformly applied across the state. This is apparent when the per curiam assesses the influence of the factor of "political subdivision boundaries" on the Map. The majority cites one consideration — keeping municipalities north of the Missouri River together — to explain district 5's protrusion northward into Clay County, but does not discuss the teardrop dividing Blue Springs, Independence, Lee's Summit, and Oak Grove. Then the majority cites a completely different factor — following historical district boundary lines — for the teardrop shape carved out of Jackson County without describing why, in this instance, it should be given preference over keeping Jackson County in one voting district. To arbitrarily choose to consider one nonconstitutional factor in one instance, ignore it in another instance, and then apply a different
Article III, section 45 guarantees the right of Missouri voters to fairly structured voting districts for the election of their United States representatives. Rights safeguarding fair elections are of the utmost importance in any democracy. Abstract discussion of law cannot mask the obvious fact that the legislature has attempted to gerrymander a teardrop-shaped portion of Jackson County from district 5 and place it in district 6. Article III, section 45 is simply and clearly written. It should be enforced, not finessed in deference to an obvious legislative shenanigan. The judgment of the trial court should be reversed.
At the very least, the Court should remand the case to afford Plaintiffs a fair opportunity to present evidence under the latest standard. See State ex rel. Div. of Family Servs. v. Standridge, 676 S.W.2d 513, 517 (Mo. banc 1984) ("The furtherance of justice requires a case shall not be reversed without remanding unless the appellate court is convinced the facts are such that a recovery cannot be had.").
