Defending the Voters’ Decision on Proposal 2
By Lee Kirk
In 2018, Michigan voters overwhelmingly approved the creation of an Independent Citizens’ Redistricting Commission to draw the boundaries for Michigan’s Congressional and state legislative districts. Two recent lawsuits filed by Republican activists assert that Proposal 2 violates their constitutional rights. Their goal is to have the commission declared unconstitutional, or to at least tie the matter up in court so long that the legislature will have to draw the lines based on the 2020 census. This article will
- Look at the roots of gerrymandering
- Discuss how it has been weaponized by using big data to draw district lines
- Talk about how Michigan citizens’ responded to gerrymandering by passing Proposal 2
- Analyze the two lawsuits filed by special interests to overturn Proposal 2
- Review recent U.S. Supreme Court decisions
- Look at the cuts in the current state budget that target the redistricting commission
Origins of Gerrymandering
Gerrymandering has been around almost as long as the U.S. Constitution. The term originated in 1812, when Massachusetts Governor Eldridge Gerry reluctantly approved a state legislative district map that clearly favored the Federalists, including one that contained a contorted district whose boundaries resembled a salamander, and the term gerrymander was born.
The Constitution requires state legislatures to redraw congressional districts every 10 years after census results are announced. All states also redraw their state legislative districts based on the census. Gerrymandering can be used to advantage the political party in power after census results are announced.
Drawing legislative districts is a political process, and for more than 200 years, the fairness of gerrymandering has been questioned, but generally it was tolerated as an unavoidable part of the political process. However, the massive amount of information readily available in both public and private databases has made it possible to draw district lines with incredible precision, something that became abundantly clear following the 2010 census. Both Republicans and Democrats employed data to gerrymander to an extent never seen before.
Pennsylvania’s gerrymandered 7th Congressional district has become known as “Goofy kicking Donald Duck.” (Goofy is on the right.)
All across the country, legislative districts took on shapes never seen in nature or politics. A Philadelphia newspaper challenged its readers to come up with a name for a wildly contorted district; the winning entry was “Goofy Kicking Donald Duck.” A district in Texas used a 40-mile stretch of I-35 to create a congressional district that included parts of Austin and San Antonio.
Gerrymandering in Michigan
The 1963 Michigan Constitution
Up until 1964, the state legislature drew Michigan’s district lines. This all changed when voters approved a new constitution. A Constitutional Convention created an independent commission to draw congressional and state legislative districts. It appears that there was concern about elected officials having a conflict of interest. This important fact was almost completely overlooked by both proponents and opponents of Proposal 2.
The commission divided the state into four districts: the Upper Peninsula, the Upper Lower Peninsula, Southwest Lower Michigan, and Southeast Michigan, and provided that the two major parties could each appoint a representative from each district. When the Supreme Court’s one person, one vote decision was issued, the legality of this body became suspect, and the Michigan Supreme Court ultimately held that the commission’s structure was unconstitutional.
This left the state without a mechanism to draw district boundaries, and the Supreme Court ultimately directed the legislature to resolve the matter. The legislature could have drafted a new constitutional provision that created a commission whose membership was not geographically determined to let the voters decide if they wanted to continue to have an independent redistricting commission, but it instead decided to arrogate that responsibility to itself. That led us to where we are today.
By the time the 2010 census was completed, Republicans controlled both the House and Senate. They used deep data sources in ways that allowed lines to be drawn with a precision never seen before. The Michigan League of Women Voters filed an ultimately unsuccessful lawsuit that sought to have the districts redrawn, asking the court to order the state to promptly redraw the boundaries of districts that were clearly gerrymandered, subject to court oversight to make sure that the districts passed constitutional muster.
Emails released during years of litigation revealed Republican consultants and legislators openly discussing how to maximize the opportunity presented to them. By 2012, Michigan was recognized as one of the nation’s most gerrymandered states.
Michigan is typically viewed as a battleground state, and the results of the 2014 election revealed how effective data-driven overt gerrymandering could be. Even though Michigan is a purple state, with its votes generally split closely between Republicans and Democrats (we elected a Republican governor and a Democrat to the U.S. Senate that year), Republicans controlled the state house 63-47, and the senate by the astounding super-majority margin of 28-10.
The urgency of addressing this situation came into sharp focus following the election of donald trump in 2016. A couple of weeks after the election, a 26 year old from Caledonia named Katie Fahey posted a query on Facebook, asking if anyone was interested in doing something about gerrymandering.
Voters Not Politicians & Proposal 2
Katie Fahey’s post unleashed a grassroots tsunami, and within a few months, there was a new political force in Michigan – Voters Not Politicians. Its goal was to put a constitutional amendment on the November 2018 ballot that would take district line-drawing away from the legislature and turn it over to an independent citizens’ redistricting commission.
Author Lee Kirk with Katie Fahey, whose Facebook post launched the grassroots effort that put Proposal 2 on the ballot.
Thousands of volunteers spread out across the state, gathering signatures in all 83 counties, holding countless educational meetings, soliciting endorsements and financial support, and knocking on tens of thousands of doors. 345,000 signatures were collected in less than four months, far more than was required.
An apparently frivolous lawsuit was filed, arguing among other things that Proposal 2 amounted to a revision of the constitution rather than an amendment. The distinction mattered, because a revision is regarded as a substantial rewriting, which can only be done through a constitutional convention, while amendments can go directly to the voters.
The Michigan Court of Appeals had no trouble dismissing the lawsuit, but the more partisan Michigan Supreme Court (justices are nominated by political parties) barely affirmed the Court of Appeals’ decision by a 4-3 vote, with Republican Justice Elizabeth Clement casting the critical vote in support of allowing the voters to decide the issue.
The dissenting justices argued that only the legislature had the authority to draw district lines, completely missing the significance of the original provision in the 1963 constitution that took that power away from the legislature. They also overlooked a recent U.S. Supreme Court decision that upheld a voter-approved independent redistricting commission in Arizona.
Under Fahey’s passionate and indefatigable leadership, volunteers, energized by the Supreme Court’s decision, fanned out in the weeks leading up to election day to talk with voters. When the results came in, Proposal 2 passed easily, garnering 61% of the vote.
Even though the voters had spoken, and spoken emphatically, no one expected that the anti-democratic, reactionary elites that sued in 2018 would go away quietly. Two lawsuits were filed in federal court earlier this year challenging the constitutionality of key provisions Proposal 2.
The 2019 Lawsuits
Daunt et al v Benson
In July 30, 2019, Michigan Freedom Fund Executive Director Tony Daunt, the lead Plaintiff in the lawsuit that tried to keep Proposal 2 off the ballot, and several state Republican officials filed a lawsuit in the U.S. District Court for Western Michigan seeking to block implementation of the redistricting commission. Michigan Secretary of State Jocelyn Benson was named as the defendant, since her office oversees all aspects of the commission.Voters Not Politicians was allowed to intervene in the lawsuit as a Defendant, joining with Benson to defend the redistricting commission.
A Michigan voter is ineligible to serve on the redistricting commission if they were a candidate for a partisan office or held such an office, worked as a registered lobbyist or consultant, were an officer for a political party or employed by the legislature in the last six years. Family members of those with political ties are also ineligible.
In their Complaint, plaintiffs argue that they wish to serve on the newly created Commission, but are prevented from doing so because they are either partisan elected officials, lobbyists, state employees, or are related to such individuals, They argue that these restrictions violate their constitutional rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
Despite their purported interest in serving on the commission, plaintiffs also have asked the court to bar the Commission from any involvement in redistricting, arguing that the challenged restrictions are non-severable, meaning that if any part of the amendment is found unconstitutional, the commission itself is illegitimate.
This argument overlooks the plain language of the severability clause included in the new constitutional language, which requires courts to honor the overall intent of the amendment when striking down some provisions if that is possible. This can be easily done here, as the court could revise or strike down the restrictions on who can serve on the commission while otherwise leaving in place the rest of the language. This would allow the commission to do the important work of drawing fair district lines, just as the voters intended.
Michigan Attorney General Dana Nessel is representing Secretary of State Benson and the will of the voters. “The problem that the people of the State of Michigan sought to address with the amendment was the partisanship with which legislative districts were being drawn,” Nessel said, “and the solution they chose was to take that power out of the hands of people with a direct interest in the outcome.”
Leaving aside the obvious hypocrisy of the lawsuit, it faces an uphill fight. Federal courts historically have given states broad latitude when determining eligibility for service on all kinds of governmental boards and committees, particularly when there is the appearance of a conflict of interest. In asking the U.S. District Court to dismiss the complaint, Nessel noted, “This is essentially no different than excluding people from jury duty who have a relationship to the parties or have a stake in the outcome of the case.”
“It’s no surprise that politicians who directly benefit from drawing their own election maps and choosing their own voters want to undermine the voice of voters again.”
—Jamie Lyons-Eddy, Voters Not Politicians
Jamie Lyons-Eddy of Voters Not Politicians also spoke out in support of the voters’ decision. “It’s no surprise that politicians who directly benefit from drawing their own election maps and choosing their own voters want to undermine the voice of voters again,” she said. “We know that some politicians who will lose power to draw maps in secret for their own benefit will make a last-ditch effort to hold on to it.”
Michigan Republican Party v. Benson
On August 22, 2019, the Michigan Republican Party filed a lawsuit in the U.S. District Court for Western Michigan seeking to block Proposal 2 from being implemented. Laura Cox, chairperson of the state Republican Party, said Proposal 2 violated the party’s freedom of association as the amendment prevented parties from picking their own members to serve on the redistricting commission.
The Complaint argues that while Proposal 2 requires candidates for the redistricting commission to attest under oath regarding their partisan affiliation, it does not require the state department to confirm individuals’ partisan affiliation. Plaintiffs also note that political parties have substantial control over who can claim party affiliation.
Proposal 2 does not provide the two major political parties with power to appoint members to the commission. To allow this would frustrate the goal of having the commission’s membership to be truly independent. Moreover, since any redistricting proposal must ultimately gain support from at least two members of each party, allowing the parties to make appointments could lead to gridlock, again undermining the commission’s independence.
The two major parties do have a say in who cannot serve on the commission. The parties’ leaders in the House and Senate each strike five applicants from the final pool of 60 Republicans, 60 Democrats, and 80 non-affiliated applicants. Thereafter, a blind, random selection from each pool takes place, resulting in four Republicans, four Democrats, and five non-affiliated applicants appointed.
“Our office will continue to vigorously defend Secretary of State Jocelyn Benson and the legality of the redistricting commission, preserving the will of the people and their right to adopt amendments to Michigan’s Constitution at the polls.”
—Michigan Attorney General Dana Nessel
Responding to the Michigan GOP filing the lawsuit, Attorney General Dana Nessel (D) said, “Our position on this matter has not changed. Our office will continue to vigorously defend Secretary of State Jocelyn Benson and the legality of the redistricting commission, preserving the will of the people and their right to adopt amendments to Michigan’s Constitution at the polls.”
Voters Not Politicians has joined with the Attorney General to support the full implementation of Proposal 2. The court has consolidated the two lawsuits, which means they will be treated as a single matter. Motions to dismiss have been filed by the Defendants, but the Court has not yet made any rulings.
Here again, Plaintiffs face an uphill battle because of the broad latitude federal courts have given states when determining eligibility for service on governmental boards and bodies.
Whichever party loses in these lawsuits will certainly file an appeal in the Sixth Circuit Court of Appeals, and the losers there can be expected to ask the U.S. Supreme Court to take up the issue. The current Supreme Court had long been reluctant to take up gerrymandering cases, but it issued a widely criticized decision earlier this year—Rucho v Common Cause—overturning lower court decisions invalidating partisan gerrymandering in North Carolina (Republicans) and Maryland (Democrats), holding that gerrymandering was a political question, and therefore not the type of legal issue that courts could resolve.
Justice Kagan wrote a blistering dissent, arguing that warped maps “reduce the weight of certain citizens’ votes,” depriving them of the ability to participate equally in elections. They also punish voters for their political expression and association. These dual injuries, Kagan concluded, implicate fundamental principles of both equal protection and freedom of speech.
She rejected the majority conclusion that gerrymandering was not something courts could decide, noting that several state Supreme Courts had had no difficulty in defining clear legal standards for determining when partisan gerrymandering goes too far.
In its decision, the court majority noted that voters in Michigan and Colorado had taken the matter out of legislators’ hands by creating independent commissions in the 2018 general election. Their comment on Michigan and Colorado, however, conveniently overlooks the fact that most states do not provide any means for citizens to even put a question like Proposal 2 on the ballot. While this comment hardly constitutes any type of legal precedent, it does seem to indicate that the court won’t be taking up the issue any time soon.
One final cautionary note. As noted earlier, Arizona was one of the first states to create an independent commission in response to a decision by the voters to take that responsibility away from the legislature. In a remarkable act of chutzpah, the Arizona legislature sued the redistricting commission. They relied on Article 1, Section 4, Clause 1 of the US Constitution, which states that: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature…”
The Arizona state legislature argued that the use of the word “legislature” in this context is literal; therefore, only a state legislature may draw congressional district lines. The commission contended that the word “legislature” ought to be interpreted more broadly to mean “the legislative powers of the state,” including voter initiatives such as the one Arizona voters had employed to create the redistricting commission.
“…The voters should choose their representatives, not the other way around.”
—U.S. Supreme Court Justice Ruth Bader Ginsburg
Justice Ruth Bader Ginsburg wrote the opinion for the five-justice majority. The people of Arizona, she noted, turned to the initiative process to curb the practice of gerrymandering to ensure that their congressional representatives would have “an habitual recollection of their dependence on the people (thereby restoring) the core principle of republican government … that the voters should choose their representatives, not the other way around.” The fifth vote came from retired Justice Anthony Kennedy, which calls into question whether the current Supreme Court would reach the same decision.
Cutting the Secretary of State’s budget
The opposition to Proposal 2 is also fighting on the legislative front. Proposal 2 states that at least 25% of the Secretary of State’s budget for the fiscal year that begins before a census occurs shall be appropriated for the redistricting commission and its work. The Republican controlled legislature blatantly disregarded the will of the voters by reducing the department’s 2019-20 budget so that the commission will receive $1 million less than Secretary of State Benson had requested.
“They’ve been doing backflips to not meet the requirements of fully funding the commission and fully funding our department’s work to encourage citizens to be engaged with the commission.”
—Michigan Secretary of State Jocelyn Benson
“I’m disappointed that our legislators don’t share my enthusiasm across the board for the opportunity that this presents to our citizens,” Benson told a reporter for Detroit’s NPR station. “But it’s not surprising,” she continued. “And yes, they’ve been doing backflips to not meet the requirements of fully funding the commission and fully funding our department’s work to encourage citizens to be engaged with the commission. Perhaps the greatest irony of this development is that Proposal 2 was an effort to get politics out of the redistricting process.”
The bottom line is this. Passing Proposal 2 was just the one triumph in the war to protect our democracy. It will take committed lawyers to prevail in court, and vigilant, vocal and engaged citizens to push back against legislative efforts to thwart the will of the people, including not just gerrymandering but also voter suppression.
Lee Kirk is a lifelong Dem and a retired attorney. He was all in early on Proposal 2. “A friend and I went to the Third Thursday farmers’ market 4 hours after the ballot language was approved in August 2018. We got over 160 signatures that evening, and I knew right then that Michigan voters were ready to start taking back their power.” However, he notes, “There is still a lot more work to do.”