In a nutshell:
* Voters approved redistricting reform in the November 2018 election, but unfinished business still haunts the issue, as new Secretary of State Jocelyn Benson seeks to settle a related lawsuit.
* The proposed settlement raises a host of new issues, which cannot be answered by either existing law or the new, still-unformed citizens commission.
* The election of a new slate of top state officials adds more intrigue to what will surely be a complicated and contentious process.
Political redistricting has remained on the reform agenda after the adoption last November of Proposal 18-2, the citizens-initiated constitutional amendment that shifts responsibility for creating congressional and legislative districts from the legislature to an independent commission and creates new standards to follow when drawing maps. The focus has shifted from the campaign to adopt Proposal 18-2 to a lawsuit that seeks to disqualify select congressional and legislative districts because they were allegedly the result of a political gerrymander.
League of Women Voters of Michigan et al v Johnson (LWV), filed before the Voters Not Politicians initiative qualified for the ballot, is one of many suits nationwide that attempt to use statistical measures to show that skewed election results were more than an aberration. Like the Wisconsin, Gill v. Whitford, and Maryland, Benisek v. Lamone, cases that made it to the U.S. Supreme Court, LWV alleges that Michigan’s election results were only possible because districts were drawn in such a way as to give Republican candidates a distinct (and hence unfair) advantage.
Plaintiffs in the LWV case claim that gerrymandering denied voters in specific districts their First Amendment free speech and association rights, as well as their equal protection rights under the Fourteenth Amendment.
The LWV case has taken a number of interesting twists. First, the Wisconsin case upon which the plaintiffs in LWV modeled their complaint was remanded to the U.S. District Court by the Supreme Court for lack of standing and further consideration. A ruling that set a precedent in Gill might have allowed the LWV court to make haste in deciding the propriety of redistricting in Michigan. Instead, LWV is now one of several cases at the District Court level, and there is uncertainty as to how or when gerrymandering cases in the federal court system may be resolved.
Next, approval of Proposal 18-2 created a constitutional structure removed from legislative involvement, and thus, lessened the probability that gerrymandering would occur when Michigan districts are redrawn following the 2020 census, or thereafter. Throwing out existing districts to redraw the lines would affect only the 2020 election. And since state senators are elected to four-year terms, and were elected in 2018, potential new districts might affect only congressional and state House members.
Finally, the election of new executive branch officials in 2018 has consequences. The case was originally filed against Ruth Johnson in her official capacity as Michigan Secretary of State and the chief election officer. Although Republican legislators were responsible for creating the maps, they are not named in the LWV case. By naming Johnson, the Republican chief elections officer, as a defendant, the Republican legislative majorities found an ally seemingly willing to defend their actions and interests.
Democrat Jocelyn Benson was elected Secretary of State in 2018, replacing Johnson as the named defendant. Now, someone who has worked against gerrymandering in the past is asked to defend its alleged practice.
Even absent this change, we would have to ask how hard the defense should fight to defend districts that will be used for only one more election
In light of that, Benson has offered a consent agreement that would redraw select –not all — district lines for the 2020 election. Doing so raises several questions.
Which districts will be affected by the redrawing of lines? Benson’s proposed settlement would redraw districts for up to nine U.S. House seats, 10 seats in the state Senate, and 15 in the state House. Why those? What determines that these districts are gerrymandered but other districts are not? Michigan Democrats gained seats in the U.S. House and state legislative chambers at the 2018 mid-term election, but our research confirms that the state’s electoral maps are gerrymandered.
Additionally, the districts do not exist in isolation. Every district shares a border with one, or more,
Who will be responsible for redrawing the district lines? The Michigan Legislature has been performing this task, but neither the Michigan Constitution nor Michigan law assigned this responsibility to it. Asking the Legislature to redraw districts would be done with the acknowledgment that they must get the Governor’s OK as well as the court’s. Alternatively, the court could assign a special master to carry out this task, as was the case when Bernie Apol assumed the task after Michigan’s Constitutional provisions were ruled in violation of the one-man-one-vote requirements of the U.S. Constitution.
Whoever is responsible would have to use 2010 census data as their starting point, but would they be able to account for eight years of population shifts as measured by the American Community Survey?
Would they be required to use the Apol standards applicable at the time current districts were created, or would they be bound by the newly adopted standards contained in Proposal 18-2? The Apol standards did not forbid the use of partisan voting patterns, but the new ones say that “districts should not provide a party with a disproportionate advantage as determined by an accepted measure of partisan fairness” and “districts shall not favor or disfavor a particular candidate or incumbent.”
If voting patterns can be used, should they be the voting patterns of the 2006, 2008, and 2010 elections that were used to create the current maps? Or could the results of more recent elections be used?
Is there a level of packing or cracking that the court will find acceptable? While the courts have had multiple opportunities to weigh in on this question, an answer has been elusive thus far.