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‘The Legislature has proved … they’re not capable of getting the job done’: How redistricting is likely to happen in Minnesota

A Q&A with Peter Wattson, a redistricting expert and lead plaintiff in a lawsuit against the state, about the state’s history of redistricting — and what he expects to happen between now and next February, when state law requires Minnesota to have a new political map.

Apportionment of the U.S. House of Representatives based on the 2020 Census
Apportionment of the U.S. House of Representatives based on the 2020 Census
U.S. Department of Commerce

Last week’s release of state-by-state population numbers by the U.S. Census was the official, if belated, kickoff of redistricting season. While Minnesota was able to hold onto all eight of its current seats in Congress, the state won’t be able to begin rebalancing the populations of those districts — or state legislative districts — until late summer, when more detailed data is released.

These delays will make it more difficult for the state Legislature to redraw its political maps by a February 2022 deadline, even if the court, and not the Legislature, has long been the decider in Minnesota. A lawsuit filed in February began the state down that path, arguing that current lines are unconstitutional because of their unequal populations and asking the court to begin the process of drawing new ones.

Peter Wattson is the lead plaintiff in that suit. No stranger to redistricting law and politics, Wattson was a state Senate staff member assigned to the redistricting process and served as counsel in 2011 to then-Gov. Mark Dayton during his redistricting battles. Now retired, Wattson remains involved in redistricting law. MinnPost talked to Wattson about the current lawsuit, the state’s history of redistricting and what he expects to happen between now and next February, when state law requires Minnesota to have a new political map.

MinnPost: You’re one of the plaintiffs in Wattson et. al. v. Simon, which is the lawsuit filed earlier this year. But before I have you talk about the lawsuit, can you explain why you are as interested as you are in this process?

Peter Wattson: Only because I’ve been following redistricting for more than the last 50 years, and been involved in each of these lawsuits over the last 50 years, first as a Senate counsel for the Minnesota Senate, and then as general counsel for Gov. Dayton in 2011, and now in retirement, I’m still interested.

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MP: The litigation that was filed … can you walk us through why you did that and what role it will play as we move forward through to February?

PW: As you know, every decade there has been a lawsuit, alleging that the Legislature would fail to do its constitutional duty to draw legislative — and since the 1980s, congressional district — boundaries on time, and that therefore a court action would be necessary. The person who filed the first lawsuit on April 9th of 1971 was Alan Weinblatt. And in the succeeding four decades, he was either the first or the second one to file the necessary suit. So he was very much involved … January has been the standard for the last three decades of when this thing would start. And it’s always been successful because — surprise, surprise — the Minnesota Legislature has always failed to do its constitutional duty.

Peter Wattson
Twitter
Peter Wattson
But February 3rd of this year rolled around and I was at the Capitol barber getting my customary haircut and seeking rumors. Ken the Capitol Barber is really good at finding and spreading the best of rumors. And he told me that what he had heard was that neither the House nor the Senate had any intention of passing either a legislative or congressional plan this decade. And I told him that that agreed with the feedback that I had been getting from talking to members of both the House and the Senate about doing something to pass a plan. So it struck me that this was late and nobody had filed a lawsuit. So naturally what I did was called my old buddy, Alan Weinblatt, and said, “Alan, where’s your lawsuit, what’s your strategy? I don’t understand why you’re waiting.” And he said, “Peter, I have retired from the practice of law two or three years ago. I can’t do it.”

 “Well, Alan, then who’s going to do it.”

“Peter, you are.”

“Alan. I’m not a trial lawyer. I’m not a courtroom lawyer. I can’t do that.”

“Peter, we’ll find you a lawyer.”

And so he and I talked about that and made some phone calls and found the lawyer. He said, “I filed that first suit in 1971. And since then, basically everybody just copied my pleadings. It isn’t hard.” And I knew that, because I’d seen them do it every decade. So I just took the one from 10 years ago, basically copied the pleadings, and added a few touches of my own, and found some plaintiffs. I called relatives and friends and a friend of a friend of a relative, got my plaintiffs together, got my lawyer. And we put in the complaint. So that’s how it got started. It’s a job that somebody has to do every decade, and Alan thought that I would be able to do it. And I gradually came around to the idea that, yeah, maybe I could do it.

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MP: What does the suit do?

PW: The first thing that is necessary to do is ask the Supreme Court to appoint a special redistricting panel to hear not only the first suit that’s filed, but the second, third and fourth suit, so that we avoid the problem that has happened in other states of multiple suits in different jurisdictions, competing against each other. Our history now, since the 1991 Supreme Court appointed a three-judge panel, is that that panel has assumed jurisdiction over all challenges to redistricting plans based on the current Census ….

And so now we’ve got my lawsuit and one filed by DFL plaintiffs, a separate lawsuit that the next day they moved that the state Supreme Court take jurisdiction over that too and consolidate the two cases. I assume the court will do that. So now what we have is a court that is ready to supervise things. … If it looks like the Legislature won’t do its constitutional duty, they will appoint the panel. And I assume what they are doing now is taking a poll of the district judges and the court of appeals judges to find out who might be available to do this … and who might be willing to do it. And then from those, select a panel that is balanced. 

MP:  I want to ask you about ripeness because we know the state’s current districts are out of compliance, but we don’t know that the Legislature is a failure until maybe February of next year. So when is this case ripe?

PW: The Legislature would become a failure as of February 15th of 2022, because that’s the deadline that they set in law some years ago as the deadline for getting this all done. But the court can’t wait until the 15th of February to start to take action. It takes time to get geared up, to get the panel appointed, for them to learn a bit about redistricting law and process, for them to hire the necessary staff who are familiar with redistricting technology, develop the expertise to actually draw maps, and if you’re going to have input from the parties and the public, it takes time to do that as well. So they need to get started now, in order to be prepared to do it later. Traditionally, what they have done is waited for the Legislature to fail to enact a plan at the session ending in one.

… I don’t know whether they will reach out to legislative leaders and say, “Hey, what do you think? Are you going to get it done or not?” Or what other steps they will take? But at some point they will determine whether they think it’s likely the Legislature will do something or likely that it will not.… We do have divided government once again with the House and Senate of opposite parties. It’s not likely that they will come to an agreement, but I think if they wanted to they could. But I don’t think they want to. 

MP:  Depending on your point of view, Minnesota has either a woeful record in redistricting or a perfect record in redistricting, given that the plans that have come out of the courts are considered to be as nonpartisan/bipartisan as can be expected. What is your perspective on that?  

PW: Well, I would say that the Minnesota Legislature’s record on this subject is abysmal. As you probably know, the last time the Legislature enacted a legislative plan at its first session following a Census, without the aid of the court, was 1881. That’s 140 years ago. That’s a pretty abysmal record … Nobody but Minnesota had to have the courts draw their plans in all three of the last three decades. And nobody had to have their plans drawn, in all five that is going back to the eighties and seventies. But we have that distinction. Nobody has been as bad as we have at having to have the courts drawing the plan. Have the courts done a good job? I think the general opinion would be that yes, they have, they have done a good job. 

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MP: For folks who don’t understand the history of this as well as you do, it’s not as though every 10 years since 1881, legislatures have been obligated to redraw lines. That phenomenon follows the one-man, one-vote court cases in the seventies is my recollection.

PW: I think you’re misstating it a bit. The constitution says that the Legislature is supposed to do that. Now the constitution doesn’t say the Legislature must, it says it shall have the power. I assume that that was under the assumption that maybe after 10 years, it won’t be necessary to equalize the lines. But as far as a court mandate goes, you are correct that it wasn’t until the 1960s that the courts began to say, you have to do this every 10 years. That was Reynolds v. Sims, 1964. And before that, the Legislature just didn’t do it. Minnesota did not do a new legislative plan between 1913 and 1959. And only did it in ’59 because it was directed to do so by a federal court.

MP: We talk about equal population now with the state census numbers being released. But what else does first the Legislature, and then the court have to consider when they’re drawing these lines?

PW: The Legislature is able to consider a lot of things that maybe the court is not. The court is obliged to do a least-change plan. In a series of cases over the decades, since the 1960s, the U.S. Supreme court has slapped down lower courts that got too creative with their ideas. The Legislature, for example, in the 1971 session was presented with quite a number of bills to reduce the size of the Legislature because people thought 67 and 135 was more than we needed. It was a hot topic. The court decided not only was it a hot topic, it was a good idea. So the three-judge federal court took oral argument on the question: Should we reduce the size of a Legislature and if so, by how much?

That’s when the Minnesota Senate took a vote to direct the office of Senate counsel to intervene in that lawsuit for purposes of opposing the idea of reducing the size of the Legislature. The Senate counsel, Blair Klein, did intervene on behalf of the Minnesota Senate and argued — I was in the courtroom when he argued — don’t do that. But the court went ahead and did it anyway. And in January, [the court] came down with a decision that cut the size of the Minnesota Senate from 67 members to 35, cut the size of the Minnesota House from 135 members to 105. The Minnesota Senate then took an appeal to the U.S. Supreme court, which in short order said to the federal district court, “You can’t do that.” 

So now it’s pretty clear that what a court can do is just tinker around the edges to equalize the populations, correct any problems with minority representation, solve the constitutional problems, but go no further than that. The Legislature right now could be very creative and have an entirely different looking legislative plan, a quite different looking congressional plan … The Legislature has great freedom, but the court does not.

MP: Some people are having fun with some disaster scenarios, such as a complete failure to have new lines and all eight members of Congress running in the same statewide district. How likely do you think those scenarios are?

PW: Isn’t going to happen now because we have a court that has said it will appoint a panel to draw the districts if necessary. So there will be new districts that are equal population and are the least-change from the current district boundaries — if the Legislature does nothing.  We don’t have the problem of everybody having to run at large because we haven’t lost a district. But we’re also not going to have a problem of members running in the current districts that are of unequal population, because somebody would file a lawsuit to prevent that happening and two people now already have.

MP: What do you make of the work — I guess work could be in quotation marks — but the work being done by the legislative committees on redistricting so far? Again, they don’t have the block-level Census data that they need. But do you consider it to be a legitimate legislative process, or are we just waiting to fail and letting the courts take over?

PW: The latter.

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MP: What is your evidence?

PW: The Senate redistricting committee held meetings on January 15th and 22nd, two meetings in January and have had none since. The House redistricting committee specifically appointed for the purpose of doing research, talking to people, gathering information, developing technical expertise, and eventually later drawing plans has not had a single meeting. At the time when I was talking to members and leaders of those committees, there was more than one overture by someone in the Senate to people in the House. No response, no response, no willingness even to begin talking. I don’t know what’s happened since. I haven’t talked to anybody since I filed that lawsuit. But I haven’t heard about anything going on other than this meeting that’s going on (Tuesday) to talk about principles, to talk about principles in great detail when there’s no conversation with the House and we’re already well past the deadline.

MP: You support using a different system altogether: a redistricting commission as many states have created. Why?

PW: The Legislature has proved, at least over the last 140 years, they’re not capable of getting the job done. What’s the likelihood that in a future decade, they might be able to get the job done? Well, maybe some decade we won’t have divided government. And what kind of a plan do you think we’d get then? If one party controls all three? Probably not a fair plan, would be my guess. Legislators have shown they don’t have time for redistricting. When they try to get it done in the first year, the year ending in one, they find that there are other issues that are more important to them, issues like balancing the budget issues like currently dealing with COVID. And they’re really pressed for time. This is, this is not a good time for them.

I proposed a bill … that would create an advisory commission appointed by the legislative leaders. And they would meet during the session and the summer to draw plans and present them to the Legislature for its adoption, with a deadline, for them to have their plans by the 1st of September. They can do that. They’re not tied up with the Legislature. 

My proposal also included putting on the ballot for November 2022 to change this advisory commission to an independent commission so that its plans, when filed on the 1st of September, became law without the need for any legislative action. Current members, possible candidates, voters would have all that much extra time to get to know the new districts and get their campaigns up and running. We wouldn’t be on this last-minute rush that we’ve been in for the last five decades. I’ve not been able to get a person to offer a bill in the 2021 session — neither party, neither body, nobody wants to author it.

MP: What didn’t I ask that I should have? 

PW: What do I expect the timetable for the court to be? Having the complaint filed now — the petition was granted in March — that they will probably appoint a panel in maybe June, maybe July. It could wait until August. It doesn’t really matter all that much. They would probably call for redistricting principles (standards for districts such as being contiguous, compact, follow local government boundaries, etc) from the parties sometime in October-November. They would perhaps take testimony from the public in October, adopt principles in November, and have plans submitted by probably sometime in December.

So, no reason for anybody to get too concerned about anything until we get into the fall. By then, by the end of September, we’ll have some real data. By then, parties will be polishing up their proposals for principles … They’ll give the Legislature every opportunity and not unveil their plan until February 15th.

MP: And then they’ll declare that the Legislature has failed, that the district lines are unconstitutional and they will unveil their plan and we’ll all pore over it and try to understand it.

PW: Yep. I would argue that (the court’s) plans are not going to look all that different from my plans because in the past what the Democratic and Republican interveners have attempted to do was to go as far left and as far right as they can with their plans, assuming that the court will try to compromise in the middle someplace and the farther to the edges they go, the better they’ll come out when the court goes to the middle. But I’m heading for the middle, with my least-change plan…They’ll take bits and pieces probably from all three plans. But I’m hoping that they’ll take a few more of mine because mine is the least-changes plan.