Pearson v. Koster

WILLIAM RAY PRICE, JR., Judge,

Dissenting Opinion.

I. Introduction

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.

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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.

II. Evidence at Trial

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.

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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 *72referred to by the parties as the “teardrop.” The northwestern corner of district 5 crawls up to bite off the southwestern corner of Clay County. The boundary then dives down to scoop out a portion of Jackson County, which becomes part of district 6. District 5 continues to reach out to the north and east, almost to mid-Missouri, to add the rural counties of Ray, Lafayette, and Saline, creating an L-shaped district extending across the state. The width of district 5 between the lowest dip of the teardrop and the southernmost border of- the district is so narrow that it almost breaks the district’s contiguity. The population of the teardrop area (i.e., the number of voters scooped from district 5 and deposited into district 6) is 79,518. Ray, Lafayette, and Saline counties add 80,245 to the population of district 5. District 5 also gains a population of 73,731 by extending its northern border into Clay County.

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:

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*73The statistics admitted with the alternative maps show that each proposed district is equal in population. A visual inspection of the maps demonstrates that each proposed district is contiguous and compact.1 None have the same teardrop-shaped carve-out as HB 193.

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 map-wide 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. Hofel-ler 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.2

Dr. Hofeller testified that different states’ districts are unlikely to achieve comparable degrees of compactness, but nevertheless compared HB 193 with dis-tricting 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.3

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 *74statistical measures of compactness, the differences were significant.

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.

III. Missouri Compactness Law: Pearson I and Johnson

This Court in Pearson I construed article III, section 45:

the applicable standard of review for a court in reviewing an article III, section 45 claim is the language of the constitution itself: whether the General Assembly divided Missouri into districts of “contiguous territory as compact and as nearly equal in population as may be.” As long as the districts comply with these constitutional requirements, the circuit court shall respect the political determinations of the General Assembly and allow for minimal and practical deviations required to preserve the integrity of the existing lines of our various political subdivisions.

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.4

*75Administering the rule espoused by the majority will be nearly impossible. The majority never defines any of the factors it announces or how they relate to Plaintiffs’ burden. Specifically, the majority never articulates how factors like “population density” or “historical boundaries” apply to the requirement of compactness or population equality. The majority would allow a reviewing court to examine a map for any “traditionally recognized,” but not identified, feature that plausibly might justify its form, and the majority apparently requires Plaintiffs to disprove every possible unidentified feature as part of their case-in-chief.5 As is the case here, the result will be to functionally insulate any map from objective review. Pearson I abandoned a subjective inquiry that gave substantial deference to the legislature in favor , of an objective standard. Here, the majority abandons the Court’s role as arbiter of constitutional validity in favor of complete deference to the legislature for any number of unspecified, undefined, discretionary factors. The majority opinion effectively makes a compactness challenge nonjusticiable and abdicates this Court’s duty to review article III, section 45, in derogation of Missouri law. See Pearson I, 359 S.W.3d at 39.6

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 *76enumerated in Missouri’s Constitution— contiguity and equality in population — necessitate a minimal degree of noncompactness. See Pearson I, 359 S.W.3d at 38 (“The provision requiring compactness of territory, subject as it must be, to other more definitely expressed rules, may also, in application, be modified by the requirement of equality in population.... ”).

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.

IV. Against the Weight of the Evidence Challenge

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.7 *77More to the point, the frequency of reversals is irrelevant to the outcome of any particular case, because a court’s decision to reverse or affirm necessarily depends *78on a careful and detailed examination of the facts of each case.

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.

Y. The Trial Court Judgment is Against 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 *79tests. Although both Plaintiffs’ and Defendants’ witnesses testified that no one statistical measure can be a reliable indicator of compactness, both parties’ witnesses still interpreted the scores for the trial court and generally found that the alternative maps scored as “more compact” than HB 193 Map on both map-wide and individual district compactness tests. Notably, it was Defendants’ expert who stated that district 5 from the McClatchey Alternative Map scored as more compact than HB 19B’s district 5 on all eight measures of compactness — and the differences in scores were significant.

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.8 There was no evidence showing that dividing Blue Springs, Independence, and other Jackson County communities between two districts made the Map more compact. There was no evidence explaining the removal of almost 80,000 people from the center of Jackson County, in what would otherwise be district 5. No evidence explained why roughly 80,000 citizens from Ray, Lafayette, and Saline counties should be tacked on to the rest of the district. There was no evidence explaining why more than 73,000 citizens of southwestern Clay County should join the rest of Jackson County in district 5. Because there is no evidence relating to this point, obviously there can be no weight assigned to it.

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 non-compact in both Barrett, 146 S.W. 40, and Kirkpatrick, 528 S.W.2d 422. Barrett found eight districts to be noncompact.9 *80146 S.W. at 65. The eight noncompact districts are shown below:

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Kirkpatrick held two districts to be non-compact. 528 S.W.2d at 427.10 Because district 33 in that map “thrusts a narrow appendage from the middle of its body into the heart of Greene County,” the district was not “within acceptable limits of compactness.” Id. See the 1975 map and 33rd district below:

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Compare districts 5 and 6, the congressional districts at issue in this case, shown below:

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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.11

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.

*83Under the guise of “weighing the evidence,” the majority finds Plaintiffs’ failure to put on evidence of these factors means Plaintiffs receive a score of zero and Defendants automatically win. One only has to look so far as to the purported analysis in the per curiam opinion to see that “other recognized factors” is a term so flexible and vague as to allow any evidence to be presented — and to allow the majority to assign that evidence any amount of weight it desires.

The majority does not define what the factors mean or how they relate to a plaintiffs 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 “[district 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 nonconstitu-tional factor in one instance, ignore it in another instance, and then apply a differ*84ent nonconstitutional factor in a third instance is beyond any rational explanation.

VI. Conclusion

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.

. In all three maps, the eastern appendages to district 3 that resemble a "lobster claw” clamping down on districts 1 and 2 are non-compact in shape. However, the evidence before the trial court showed that this non-compactness was necessary to comply with the federal Voting Rights Act. District 3, therefore, was "compact ... as may be.” See infra Part III.

. In fact, Missouri has adjudicated at least nine districts to be noncompact. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40 (1912); Preisler v. Kirkpatrick, 528 S.W.2d 422, 425-27 (Mo. banc 1975). See discussion in Part V.

.One state to which he compared the Map— Maryland — had no compactness requirement at all. While the other states selected for comparison did have legal compactness standards, there was no evidence of exactly what these legal standards required or if they were similar to Missouri's constitutional requirement.

. In Pearson I, this Court articulated the legal standard for compactness challenges then remanded for the parties to present evidence in accordance with that standard. Neither the trial court nor the parties had any discretion to vary from this Court’s directions on remand. See Feinstein v. McGuire, 312 S.W.2d 20, 24 (Mo.1958) (citing Murphy v. Barron, 286 Mo. 390, 228 S.W. 492, 494 (1920)). The per curiam opinion now attempts to change the rules after the game has been played by introducing “other recognized factors" as additional elements of Plaintiffs’ case.

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.’’).

. As the concurring opinion in Johnson explains, it would make more sense to place the burden on the state to raise "other factors” as defenses. See Johnson, (Price, J., concurring), at 39. This has been the approach of the United States Supreme Court. See Karcher v. Daggett, 462 U.S. 725, 741, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983).

.The majority leaves unexamined the effect that its construction will have on equal population challenges, despite the application of "as may be” to article III, section 45's compactness and population equality requirements. The arguments against the majority's construction apply with all the more force when turned to equality of population. The majority does not, because it cannot, explain how historic boundary lines (or any other "recognized factor”) magically make two unequally populated districts constitutional. Cf. Kirkpatrick v. Preisler, 394 U.S. 526, 533-34, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969) ("Missouri contends that variances were necessary to avoid fragmenting areas with distinct economic and social interests.... But to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people.”).

. See, e.g., Searcy v. Seedorff, 8 S.W.3d 113, 115 (Mo. banc 1999); Buckner v. Jordan, 952 S.W.2d 710, 712 (Mo. banc 1997); Grossman v. St. John, 323 S.W.3d 831, 834-35 (Mo.App. W.D.2010); Martha’s Hands, LLC v. Rothman, 328 S.W.3d 474, 482 (Mo.App. E.D.2010); Sullins v. Knierim, 308 S.W.3d 241, 248 (Mo.App. E.D.2010); Glenstone Block Co. v. Pebworth, 330 S.W.3d 98, 103 (Mo.App. S.D. 2010); In re D.O., 315 S.W.3d 406, 408 (Mo.App. S.D.2010); Andrews v. Andrews, 290 S.W.3d 783, 788 (Mo.App. E.D.2009); Wightman v. Wightman, 295 S.W.3d 183, 187 (Mo.App. E.D.2009); West v. Dir. of Revenue, 297 S.W.3d 648, 650 (Mo.App. S.D.2009) (before Scott, C.J., Lynch, P.J., and Rahmeyer, J.); Rozier v. Dir. of Revenue, 272 S.W.3d 262, 266 (Mo.App. W.D.2008); Martin v. Dir. of Revenue, 248 S.W.3d 685, 689 (Mo.App. W.D.2008); Viacom Outdoor, Inc. v. Taouil, 254 S.W.3d 234, 238 (Mo.App. E.D.2008); Davis v. Schmidt, 210 S.W.3d 494, 518 (Mo.App. *77W.D.2007); In re R.M., 234 S.W.3d 619, 625 (Mo.App. E.D.2007); Swartz v. Johnson, 192 S.W.3d 752, 755 (Mo.App. W.D.2006); Manager of Div. of Fin. of Jackson Cnty. v. La-Sha Consulting, Inc., 224 S.W.3d 605, 607 (Mo.App. W.D.2006) (before Newton, P.J., Breckenridge and Ellis, JJ.); Huskey v. Dir. of Revenue, 183 S.W.3d 628, 629 (Mo.App. S.D.2006) (before Raymeyer, P.J., Parrish and Lynch, JJ.); Pride v. Lewis, 179 S.W.3d 375, 377 (Mo.App. W.D.2005) (before Ulrich, P.J., Breckenridge and Smart, JJ.); Doerhoff v. Salmons, 162 S.W.3d 498, 502-03 (Mo.App. W.D.2005) (before Holliger, P.J., Breckenridge and Ellis, JJ.); Mahoney v. Mahoney, 162 S.W.3d 512, 516-17 (Mo.App. W.D.2005); Campbell v. Dir. of Revenue, 172 S.W.3d 476, 477 (Mo.App. E.D.2005); Callanan v. Dir. of Revenue, 163 S.W.3d 509, 512-15 (Mo.App. E.D.2005); Tarneja v. Tarneja, 164 S.W.3d 555, 564 (Mo.App. S.D.2005); Garrison v. Garrison, 147 S.W.3d 925, 930 (Mo.App. W.D.2004); Shirkey v. Guar. Trust Life & Ins. Co., 141 S.W.3d 62, 69 (Mo.App. W.D.2004); Newsham v. Dir. of Revenue, 142 S.W.3d 207, 208 (Mo.App. E.D.2004); Lumsden v. Dir. of Revenue, 136 S.W.3d 95, 98 (Mo.App. E.D.2004); TA Realty Assoc. Fund V, L.P. v. NCNB 1500, Inc., 144 S.W.3d 343, 348 (Mo.App. E.D.2004); Clark v. Dir. of Revenue, 132 S.W.3d 272, 279 (Mo.App. S.D.2004); Emig ex rel. Emig v. Curtis, 117 S.W.3d 174, 182 (Mo.App. W.D.2003); Singleton v. State, 120 S.W.3d 218, 224 (Mo.App. W.D.2003) (before Hardwick, P.J., Breckenridge and Spinden, JJ.); Hockman v. Dir. of Revenue, 103 S.W.3d 382, 383 (Mo.App. W.D.2003); Dean Machinery Co. v. Union Bank, 106 S.W.3d 510, 523 (Mo.App. W.D.2003); Kauffman v. Kauffman, 101 S.W.3d 35, 44 (Mo.App. W.D.2003) (Breckenridge, P.J.); In re Coffel, 117 S.W.3d 116, 117 (Mo.App. E.D.2003); In re B.C.K., 103 S.W.3d 319, 321 (Mo.App. S.D.2003); Edmisten v. Dir. of Revenue, 92 S.W.3d 270, 275 (Mo.App. W.D.2002); Wright v. Fisher, 89 S.W.3d 548, 550 (Mo.App. W.D.2002); Austin v. Pickett, 87 S.W.3d 343, 345 (Mo.App. W.D.2002); Baxley v. Jarred, 91 S.W.3d 192, 206 (Mo.App. W.D.2002); Innis v. Dir. of Revenue, 83 S.W.3d 691, 696 (Mo.App. W.D.2002) (before Breckenridge, P.J., Howard and Holliger, JJ.); Smith v. Dir. of Revenue, 77 S.W.3d 120, 126 (Mo.App. W.D.2002); Hall v. Dir. of Revenue, 72 S.W.3d 231, 233 (Mo.App. E.D.2002); Bradford v. Dir. of Revenue, 72 S.W.3d 611, 614 (Mo.App. E.D.2002); Burk v. Dir. of Revenue, 71 S.W.3d 686, 688 (Mo.App.S.D.2002); Boyd v. Dir. of Revenue, 71 S.W.3d 262, 267 (Mo.App. S.D.2002); Matthews v. Dir. of Revenue, 72 S.W.3d 175, 177-80 (Mo.App. S.D.2002); Dechant v. Saaman Corp., 63 S.W.3d 293, 294 (Mo.App. E.D.2001); Baker v. Baker, 60 S.W.3d 19, 24 (Mo.App. E.D.2001); Bollinger v. Dir. of Revenue, 39 S.W.3d 64, 66 (Mo.App. E.D.2001); Ummelman v. Dir. of Revenue, 59 S.W.3d 651, 653-54 (Mo.App. S.D.2001); In re Marriage of Eikermann, 48 S.W.3d 605, 612 (Mo.App. S.D.2001); In re Marriage of Pahlow, 39 S.W.3d 87, 98 (Mo.App. S.D.2001); Turrell v. Missouri Dept. of Revenue, 32 S.W.3d 655, 658 (Mo.App. W.D. 2000) (before Holliger, P.J., Breckenridge and Smart, JJ.); Rhodus v. McKinley, 16 S.W.3d 615, 619 (Mo.App. W.D.2000) (before Spinden, J., and Breckenridge, P.J.); Flynn v. Flynn, 34 S.W.3d 209, 210-12 (Mo.App. E.D.2000); In re D.L.M., 31 S.W.3d 64, 65 (Mo.App. E.D.2000); Dillon v. Dir. of Revenue, 999 S.W.2d 319, 320 (Mo.App. W.D.1999) (Breckenridge, C.J.); In re M.F., 1 S.W.3d 524, 528 (Mo.App. W.D.1999) (Breckenridge, C.J.); Buschardt v. Jones, 998 S.W.2d 791, 801 (Mo.App. W.D.1999) (Breckenridge, C.J.); Williams v. Williams, 11 S.W.3d 728, 729-30 (Mo.App. W.D.1999) (before Breckenridge, P.J., Ellis and Spinden, JJ.); Bescheinen v. Dir. of Revenue, 999 S.W.2d 324, 324 (Mo.App. W.D.1999); Hawkins v. Dir. of Revenue, 7 S.W.3d 549, 552 (Mo.App. E.D.1999); Meurer v. Dir. of Revenue, 984 S.W.2d 873, 878 (Mo.App. E.D.1999); Selix v. Dir. of Revenue, 985 S.W.2d 380, 384 (Mo.App. E.D.1999); Welch v. Dir. of Revenue, 2 S.W.3d 142, 143 (Mo.App. S.D.1999); Newsom v. Newsom, 976 S.W.2d 33, 34 (Mo.App. W.D.1998) (Breckenridge, P.J.); Sprouse v. Sprouse, 969 S.W.2d 836, 838 (Mo.App. W.D.1998); Tate v. Dir. of Revenue, 982 S.W.2d 724, 729 (Mo.App. E.D.1998); Ironite Prod. Co. v. Samuels, 985 S.W.2d 858, 861-62 (Mo.App. E.D.1998); Helton v. Dir. of Revenue, 944 S.W.2d 306, 307 (Mo.App. W.D.1997); Dover v. Dover, 930 S.W.2d 491, 496 (Mo.App. W.D.1996) (Breckenridge, J.); Christian Disposal, Inc. v. Village of Eolia, 895 S.W.2d 632, 633-34 (Mo.App. E.D.1995); Hatfield v. Dir. of Revenue, 907 S.W.2d 207, 208 (Mo.App. S.D.1995).

. Compare, for example, the testimony explaining that district 3 is crescent-shaped because districts 1 and 2 must comply with the Voting Rights Act.

. The Barrett Court held that the map's chai-*80lengers were barred from relief on procedural grounds not applicable here. See Barrett, 146 S.W. at 65-66.

. Kirkpatrick did not hold the map as a whole noncompact because despite the problem with district 33 the map as a whole "substantially complied” with constitutional requirements. 528 S.W.2d at 427. In Pearson I, however, this Court said that the protection of article III, section 45 "applies to each Missouri voter, in every congressional district.” Pearson I, 359 S.W.3d at 39.

. This case is unique because any observer can look at the shape of districts 5 and 6, and at the shape of prior districts adjudicated to be noncompact, and determine that the teardrop extension/carve-out destroys the compactness of these two districts.