Last year, e-mails emerged in Michigan dating back to the state’s 2011 redistricting effort. With the state government totally controlled by Republicans in the aftermath of the 2010 Tea Party wave, Republicans were able to gerrymander the closely divided state to give their party a decisive advantage in the state legislature and the congressional delegation.
In one of the e-mails, Republican aides discussed a redistricting plan that would “cram all the Dem garbage” into a small handful of counties in southeast Michigan near Detroit. That line received national attention, especially considering the obvious racial implications of the statement within the context of Michigan politics.
It’s impossible to say how much of a role that story played in the 2018 election, when Michigan voters decided by an overwhelming 21-point margin to create an independent commission to handle redistricting in the future. But voters made their wishes perfectly clear.
Those wishes have not moved Michigan Republicans. The state Republican Party has filed a lawsuit in federal court to block the creation of the redistricting commission, arguing that it violated the Constitution and the right of individual Americans to associate (or not associate) with the political party of their choice.
An Independent Commission and GOP Objections
Republicans in Michigan opposed the creation of an independent redistricting commission last November. Their legal argument, filed in federal court in Grand Rapids, focuses on the selection process for the members of the commission.
Under the constitutional amendment passed by Michigan voters, the redistricting commission will have 13 members: four Democrats, four Republicans and five non-affiliated voters (Michigan is one of the few states that does not allow voters to register by political party). Michigan residents who are either registered or eligible to vote are then allowed to apply for a place on the commission. They then swear under oath that they are either affiliated with one of the two major parties or that they are unaffiliated. The state does not have to verify these sworn declarations.
The Secretary of State then randomly selects 60 Republicans, 60 Democrats and 80 unaffiliated applicants and sends those names to the leaders of the Republican and Democratic parties in the state legislature. The leaders in both houses can strike up to five applicants each from those pools for a total of 20. At that point, the Secretary of State randomly draws four names from the remaining Republican and Democratic pools and five names from the unaffiliated pool, thus creating the full redistricting commission.
While claiming that they are not inherently opposed to the idea of a non-partisan redistricting commission, Republicans have raised several objections to the process. The GOP lawsuit is filed on behalf of a handful of Republican politicians who are barred from serving on the commission because eligibility rules forbid elected officials and candidates for elected office from the last six years from applying. The lawsuit claims that these rules unconstitutionally force these individuals to either “limit their political association and expression or be subject to automatic and absolute exclusion from service on the commission.”
In addition, the lawsuit claims that the selection process could allow Democrats to self-identify as Republicans to gain access to the commission and tilt it in favor of the Democratic Party. Because Michigan voters don’t register by party, it is more difficult to ascertain a voter’s true affiliation. Of course, Republicans would seem to be able to pull the same (hypothetical) trick and apply as Democrats, but Michigan Democrats have registered no objections to the selection process.
The GOP’s lawsuit claims this process violates the First and 14th Amendments and it is seeking an injunction to prevent the (Democratic) Secretary of State from seating the commission. If the lawsuit fails, the commission will draw congressional and state legislative districts for the 2022 election and beyond.
The Commission’s Legal Prospects
Michigan is far from the only state to create an independent redistricting commission – 21 states currently have some sort of independent commission, and Michigan was joined by Colorado and Utah in voting for such a commission in 2018. Michigan Republicans point out that their commission has less of a role for state parties in choosing commission members than similar boards in other states.
As with seemingly every other issue in modern American politics, it seems likely that the final decision will come down to the US Supreme Court. And the survival of the Michigan commission at the Court isn’t a sure thing. The 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission held that such commissions do not violate the Constitution. However, it was a 5-4 decision in which Justice Anthony Kennedy joined the Court’s four liberals to uphold the existence of independent redistricting commissions.
Justice Kennedy has since been replaced on the court by Brett Kavanaugh, a more reliably conservative jurist. That would, once again, seem to place Chief Justice John Roberts in the role of swing justice if the Michigan case does reach the Court.
That would not seem to augur well for the commission – Roberts wrote the dissent in the Arizona case, arguing that the Constitution empowers only state legislatures to draw legislative districts.
Would Roberts, a conservative who is often characterized as a far-sighted institutionalist desperate to preserve the Court’s credibility, seize the opportunity provided by the Michigan case to overturn Arizona State Legislature so soon after the decision was handed down? Would he instead focus on the GOP’s procedural arguments to strike down the Michigan commission while leaving the 20 other such commissions across the country intact? Or would he – or, perhaps, one of the two judges appointed by Donald Trump who were not on the Court in 2015 – vote in favor of the Michigan commission?
The answers to those questions are likely still a year or two away. But if Chief Justice Roberts and the rest of the Court end up killing Michigan’s independent redistricting commission, it would be a cruel irony. In Rucho v. Common Cause, the 2019 case in which the Court held that partisan gerrymandering cases were political questions and could not be decided by the judiciary, Roberts, writing for the majority, actually cited Michigan’s 2018 vote to establish an independent commission as an example of a non-judicial remedy to the problem of partisan gerrymandering.
If the Court ends up with the opportunity to strike down Michigan’s commission and seizes it, that would raise a difficult question: just how are voters allowed to fight back against partisan gerrymandering?