In a nutshell

  • A citizen-led constitutional amendment to change Michigan’s redistricting process is aiming to get on the November 2018 ballot.
  • The proposal has been challenged in court on the same grounds that prevented the 2008 Reform Michigan Government Now! proposal from appearing on the ballot: it was too expansive in scope.
  • In the context of the Reform Michigan Government Now! ruling, the redistricting proposal is long and complex, but limited in scope.

A citizen-led petition to amend the Michigan Constitution to change the process for redistricting after each census is being challenged in court.

The challenge is on the same grounds that disqualified an expansive 2008 citizen-initiated constitutional amendment to restructure Michigan state government, called Reform Michigan Government Now! (RMGN) The latter proposal was blocked from  the November 2008 general election ballot by the Michigan Court of Appeals on the grounds that the scope of the changes represented a “general revision” as opposed to an “amendment” to the Constitution. The Court found that such a revision was reserved only for a constitutional convention while the Reform Michigan Government Now! proposal originated from a citizen-initiated amendment.

While the redistricting amendment aiming to appear on the November 2018 statewide ballot shares some similarities with the failed petition, it is limited in its scope and appears to constitute an amendment rather than general revision to the Constitution.

Redistricting – long and complex, but limited in scope

There is little doubt that the Voters not Politicians (VNP) petition is both long and complex, as was the RMGN proposal. However, that is about where the similarities between the two end.

The VNP proposal contains 3,346 words. However, it would strike 1,572 existing words from the Michigan Constitution. On net, the proposal would expand the Constitution by 1,774 words. Specifically, it proposes to modify 11 sections across three articles of the Constitution – Articles IV (legislative branch), V (executive branch), and VI (judicial branch). The crux of the changes are proposed for Article IV, sections 2 through 6. Changes proposed for the executive and judicial branch are largely to comport with those encompassed in Article IV.

These sections of Article IV originally defined Michigan’s legislative redistricting approach. However, in 1964, the U.S. Supreme Court found that standards used to create districts based on anything other than population were in violation of the “one person, one vote” provision outlined in the 14th Amendment of the U.S. Constitution. In 1982, the Michigan Supreme Court invalidated the entirety of Michigan’s redistricting provisions because one requirement violated the Equal Protection Clause of the U.S. Constitution and the other provisions were non-severable from the violating section. The VNP petition seeks to replace the unconstitutional language.

While complex in nature, the redistricting proposal deals with a single aspect of state government operations. Specifically it would establish in the Constitution a new process for drawing congressional and Michigan legislative electoral districts. To do so, it creates a 13-member Independent Citizens Redistricting Commission; outlines how those individuals are to be recruited, screened, and selected; establishes a process to finance the work of the Commission; prioritizes the criteria that the Commission must use to develop district maps; describes the process for evaluating and selecting district maps; and lays out a timeline for redistricting plans to take effect.

Reform Michigan Government Now!

In contrast, the scope of the 2008 petition was expansive and would have significantly reconfigured all three branches of Michigan state government. Among other things, the RMGN proposal, if passed by the voters, would have:

  • Reduced the Michigan Supreme Court from seven members to five;
  • Reduced the state Court of Appeals from 28 to 21;
  • Added 10 new local judges;
  • Reduced the Michigan Senate from 38 to 28 members and the House or Representatives from 110 to 82 members;
  • Created a nonpartisan redistricting commission and required new district lines to be drawn to ensure “competitive” elections;
  • Required elected officials to disclose income and assets;
  • Modified elected officials’ retirement benefits; and
  • Reduced the number of state departments and capped the number of boards and commissions.

Given the breadth of the proposal, there is little doubt it could be considered anything other than complex. While the complexity was certainly considered by the Michigan Court of Appeals, it was the proposal’s scope that generated the most scrutiny in determining whether to permit it to appear on the November 2018 ballot.

Quoting the court’s published opinion, “Also, let us be clear at the outset what our opinion today does not do. We do not act to prevent the citizens from voting on a proposal simply because that proposal is allegedly too complex or confusing.”

Instead, the Court found that the Michigan Constitution clearly delineates between “amendments” and “general revisions” and it is absolutely clear that the procedure for amending the constitution cannot effect such a “general revision.” The Court used two tests to determine whether a proposal is an “amendment” or “general revision” to the Constitution; a quantitative (i.e., length) and a qualitative (i.e., substance) test.

In terms of length, RMGN was approximately 7,300 words (almost 20,000 when you consider the legal requirement to reprint in full sections of the Michigan Constitution that would be altered or abrogated by the proposal).  The substantive changes were spread across four articles of the Michigan Constitution, including 24 existing sections and four new sections. This was evidence for the Court to find that the RMGN petition met the quantitative test.

In its application of the qualitative test, the Court found the scope of the proposal (i.e., fundamentally changing all three branches of state government) to be too expansive to constitute an amendment or series of amendments. Instead, the qualitative nature of the initiative petition effected a “general revision” of the constitution. Such a revision, the Court found, is expressly reserved to a constitutional convention under Article XII, Section 3, not the initiative process contained in Article XII, Section 2.

The VNP petition deals with a single subject; legislative redistricting (also part of the RMGN petition). While it is long and complex, the scope of the proposal is limited. Based on the two-pronged test, it appears that the petition meets the quantitative (i.e., length) standards but fails to meet the qualitative (i.e., substance) standards laid out by the Court of Appeals in its 2008 RMGN decision. Backers of the VNP proposal appear to have chosen the appropriate avenue to amend the Michigan Constitution.

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