Michigan Redistricting Reexamined

Suzanne Rorhus, Articles Editor (‘20)

In November 2018, Michigan voters approved a constitutional amendment that entrusts an independent commission with drawing election districts for the state. Currently, the party in power draws the election districts map. The amendment is designed to combat gerrymandering, the practice of drawing district lines to favor one political party at the expense of another.[1]

The Michigan amendment calls for thirteen commissioners to be selected at random by the Secretary of State from a pool of eligible candidates. The amendment blocks elected officials, lobbyists, party officials, and their families from serving as commissioners. Four of the commissioners must be affiliated with the Democratic Party, four with the Republicans, and five must be unaffiliated. Using data from the 2020 census, the commissioners are to draw these new districts in time for the 2022 election.

Michigan State University Constitutional Law Professor Kevin Saunders says “gerrymandering has an enormous effect on our democracy.”[2] As an example, he hypothesizes a candidate’s thought processes:

“If you are running for office in a district that is safe for your party, the only election that matters is the primary. You don’t need to court the centralist position because you don’t need votes from the opposite party. Instead, you look to the center position of your party. The candidate who holds the center of the votes that matter will win. And, once in power, politicians from a safe district hesitate to compromise. A compromise moves a politician towards the center of the population generally but further from the center of his party’s position.”[3]

The Economist rates the United States as a “flawed democracy,”[4] which Professor Saunders attributes partially to gerrymandering. “Successful democracies have taken the politics out of their voting districts,” he said. “The top democracies either have proportional representation or use commissions that are as nonpolitical as they can be.”[5]

In July, the Republican Party sued to block the constitutional amendment, calling it “blatantly unconstitutional.”[6] The thrust of their complaint is that the First Amendment is violated when otherwise eligible persons are barred from serving as commissioners because they have exercised a fundamental right, such as freedom of association.[7] Membership in a political party is the paradigmatic affiliation protected by the freedom of association concept.[8]

If limiting commission membership to those who do not play an active role in political parties violates the First Amendment, the court will subject the amendment to strict scrutiny to address whether it is narrowly tailored to address a compelling governmental interest. If the First Amendment is not implicated, the rational basis standard of review will apply, which seeks to determine whether the restriction is rationally related to a permissible state interest. Voters Not Politicians, the group that proposed the measure, says the interest targeted is fair elections, a compelling interest in a democracy.[9]

The Republican complaint argues that barring party officials from serving on the commission is not narrowly tailored to the issue of partisanship because “there are no mechanisms to identify and eliminate from consideration applicants who are extremely partisan in nature but do not fall into one of the banned categories.”[10]

The counterpoint to this argument is that avoidance of partisan activities is rationally related to choosing nonpartisan election districts. If 61% of Michigan voters feel politicians should not draw district lines, eliminating politicians from the commission to draw the lines is a narrowly tailored solution.[11] Professor Saunders notes “affiliation is not barred, activism is. You can clearly have beliefs that align with a political party, but the party itself doesn’t get to put you on the commission.”[12] He equates political activism with self-identity: “If I’m a member of a party, it is only one aspect of who I am. If I am a party official, it is a major part of who I am.”[13]

Voters in Michigan will watch this drama unfold over the coming months. If this First Amendment argument is successful in killing independent redistricting commissions, gerrymandering may well be an unfixable problem. The Supreme Court will not touch it, Congress and state legislatures are unmotivated to do so, and voter initiatives that bar partisans are in jeopardy.[14]

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[1] See Richard L. Hasen, Michigan Has a Smart Idea for Fixing Gerrymandering. Conservatives Want to Crush It, Vox (Sept. 10, 2019), https://www.vox.com/2019/9/9/20850936/gerrymandering-michigan-commission-republican-legal-argument.

[2] Interview with Kevin W. Saunders (Oct. 2, 2019). Professor Saunders holds the Charles Clarke Chair in Constitutional Law at the Michigan State University College of Law and is the author of Free Expression and Democracy: A Comparative Analysis, published by Cambridge University Press in 2017.

[3] Id.

[4] See The Economist Intelligence Unit’s Index of Democracy, https://www.eiu.com/topic/democracy-index (“The Democracy Index is based on five categories: electoral process and pluralism; civil liberties; the functioning of government; political participation; and political culture.”). The USA is ranked 25 out of 167 countries. Id.

[5] See Saunders, supra note 2.

[6] Jonathan Oosting, Republicans Sue to Block Michigan Redistricting Commission, Detroit News (July 30, 2019), https://www.detroitnews.com/story/news/politics/2019/07/30/republicans-sue-block-michigan-redistricting-commission/1860829001/.

[7] Complaint for Declaratory and Injunctive Relief at 40, Daunt v. Benson, No. 1:19-cv-00614 (filed July 30, 2019) (“Further, Plaintiffs have been excluded from eligibility based on their exercise of one or more of their constitutionally protected interests, i.e., freedom of speech (e.g., by the exclusion of candidates for partisan office), right of association (e.g., by the exclusion of members of a governing body of a political party), and/or the right to petition (e.g., by the exclusion of registered lobbyists).”).

[8] David Schultz, The First Amendment Encyclopedia, Middle Tennessee State University, https://mtsu.edu/first-amendment/article/1139/political-parties (last visited Oct. 2, 2019).

[9] Strengthening Democracy by Engaging Citizens, Voters Not Politicians, https://votersnotpoliticians.com (last visited Oct. 2, 2019) (“In 2018, Michigan voters took the politicians’ power to draw their own election maps away and put that power in the hands of voters by creating a fair, impartial, and transparent redistricting process.”).

[10] Complaint supra note 7, at 61.

[11] See Strengthening Democracy, supra note 9 (“On November 6, 2018, 61% of Michigan voters supported VNP’s Redistricting Reform Amendment to put the power to draw election district maps in the hands of voters – not politicians.”).

[12] See Saunders, supra note 2.

[13] Id.

[14] See Hanson, supra note 1.