Air Bud 15: Pawtisan Redistricting
In a well-known scene in the well-known (but not very good) 1997 movie Air Bud, the protagonist golden retriever is permitted to play in a league game alongside his human teammates because the rule book contains no rule forbidding dogs from playing. The logic is absurd, of course. There is likewise almost certainly no rule forbidding agents of a team from surreptitiously spiking the opponents' water bottles with sedatives that sap their energy, but that doesn't mean that such tactics are permitted.
Despite the silliness of its premise, Air Bud led to four sequels and a remarkable nine spinoffs: seven "Air Buddies" movies featuring the original Air Bud's puppies; and two Christmas-themed "Santa Paws" movies. Remarkably, a fifteenth Air Bud movie is slated to be released next year. But perhaps that film should be considered the sixteenth in the franchise, because there is an Air Bud drama currently playing out in Missouri--just not on film. It is the legal battle over Missouri Republicans' efforts to engage in mid-cycle partisan gerrymandering.
The legal battle centers around the meaning of Article III, § 45 of the Missouri Constitution. Adopted in 1945, it provides:
When the number of representatives to which the state is entitled in the House of the Congress of the United States under the census of 1950 and each census thereafter is certified to the governor, the general assembly shall by law divide the state into districts corresponding with the number of representatives to which it is entitled, which districts shall be composed of contiguous territory as compact and as nearly equal in population as may be.
Republicans argue that this language does not foreclose mid-cycle redistricting because it doesn't expressly forbid such redistricting. Chuck Hatfield, a lawyer arguing for Democrats challenging the new maps, likened this contention to the case for permitting a dog to play in a youth basketball game:
There's a famous scene where the referee says, ‘Ain't no rule says a dog can't play basketball,’ and they allow the dog to play. It's farcical, and it's kind of ridiculous. . . . We don't do 'Air Bud' rules in Missouri for very good reason, but that's essentially what the argument is from the state.
Hatfield seems pretty clearly right here, although in my view his argument is even stronger than the Air Bud analogy indicates. It's true that Section 45 doesn't say in so many words that mid-cycle redistricting is forbidden. But that is a fair inference from the language. Section 45 charges the governor and legislature with the task of writing laws that apportion the state's congressional delegation after each decennial census. A fair inference from that language is that those districts will then remain in force until the next census.
To be sure, there are circumstances when a law is truly silent and there is no obvious inference to be drawn one way or the other whether silence means prohibition or permission. Even in such circumstances, however, the law does not run out, leaving us completely at sea. Rather, one can often infer a default rule based on the overall structure and purpose of the relevant law.
Consider a 1995 Supreme Court case from, you guessed it, Missouri. In U.S. Term Limits v. Thornton, the Supreme Court confronted the question whether a Missouri constitutional provision that imposed term limits on its congressional delegation was valid. The Court ruled 5-4 that it was not. Although I believe the case was rightly decided, the dissent by Justice Thomas nicely tees up the issue. He acknowledged that Congress itself could not legislate term limits, but he argued that a state could. Why? He stated:
As far as the Federal Constitution is concerned, . . . the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it.
That's generally correct as a statement of standard constitutional doctrine. Congress needs an enumerated power, so silence means no power; the states have plenary (or police) powers, so, absent preemption or a constitutional prohibition, silence means state power. The reason Justice Thomas and the dissenters were mistaken in their bottom line, however, is that, as the U.S. Term Limits majority argued, states have no reserved powers when it comes to writing rules governing their congressional delegations; with respect to that function, they exercise a federal power that's granted by the federal Constitution; thus the normal everything-not-forbidden-is-allowed default for the states doesn't apply in this case.
What makes the ruling in Air Bud preposterous is not the fact that the referee relies on a default rule. It's that he relies on a ridiculous default rule. But none of that should matter with respect to the question whether mid-cycle redistricting is permitted under the Missouri Constitution. To answer that question, one doesn't need a default rule at all. Straightforward interpretation of Section 45 suffices to show why the Republican effort should be deemed invalid.