Michigan Supreme Court to hear arguments on plan to fight gerrymandering

Paul Egan | Detroit Free Press

LANSING — Grotesquely shaped congressional districts.

Republicans, who control all branches of Michigan government, consistently winning a higher percentage of seats than their share of the statewide vote would dictate.

And a plan for change that would remove the drawing of political district lines from the partisan Legislature and place it in the control of what proponents say would be an independent commission.

All of that lands at the feet of the Michigan Supreme Court at 9:30 a.m. Wednesday, when the seven-member court hears arguments on whether the Voters Not Politicians anti-gerrymandering proposal should appear on the November ballot.

A group called Citizens Protecting Michigan's Constitution, financially backed by the Michigan Chamber of Commerce, is suing to try to quash the question. The Michigan Court of Appeals in June ruled against the chamber-backed group, which then appealed to Michigan's highest court.

The stakes

More than 400,000 Michigan residents have signed petitions asking that the anti-gerrymandering proposal be placed on the ballot.

So it's clearly an important case.

But for those who feel gerrymandering is a significant problem in Michigan and want a change from the status quo, the stakes were raised significantly by the recently announced retirement of U.S. Supreme Court Justice Anthony Kennedy.

Michigan redistricting reformers have been attacking the present system on two parallel tracks: one is the purportedly nonpartisan Voters Not Politicians constitutional amendment at the state level; the other is an ongoing federal court challenge that is expected to eventually be decided by the U.S. Supreme Court, along with a handful of similar challenges in North Carolina, Wisconsin and other states.

Kennedy, a Republican appointee who voted with the liberal wing of the court on certain issues, was seen as the swing vote that could tip the U.S. Supreme Court to strike down highly controversial redistricting methods like the one used in Michigan.

Kennedy's retirement "presented a potentially crippling threat to growing efforts by voting rights advocates and Democrats to halt gerrymanders by legal and political means," the New York Times wrote on June 30.

The law

From a legal standpoint, whether one believes gerrymandering is a problem in Michigan has nothing to do with whether the proposal should appear on the ballot.

And aside from the legal questions, it's possible to oppose gerrymandering and not see it as a problem in Michigan, or to see it as a problem but not see the Voters Not Politicians proposal as the solution.

More: GOP justices face tough choice in gerrymandering case

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The questions the justices must consider are whether the proposal meets constitutional requirements for a proposed ballot question to amend the state constitution, and whether the Board of State Canvassers — a state elections panel — had a clear legal duty to approve it.

There are other legal issues at play, but the main one is whether the Voters Not Politicians proposal is a constitutional amendment, as its proponents assert, or whether it is a general revision of the constitution, as its challengers say.

Amendments may be made through ballot questions. General revisions require a constitutional convention.

How do you tell the difference between the two? One way the Michigan Supreme Court has described it over the years is as follows: "Basically, revision suggests fundamental change, while amendment is a correction of detail."

The Voters Not Politicians proposal seeks to make changes to 11 sections of the constitution, affecting mostly the legislative branch of government, which now has responsibility for redistricting, but also the executive and judicial branches, which respectively would lose oversight powers and the power to order adoption of an alternative plan.

All the proposed changes relate to redistricting.

The Michigan Court of Appeals noted that a 2008 constitutional proposal, which was excluded from the ballot after it was challenged by the same Michigan Chamber of Commerce-backed group, would have "reorganized the operation of the whole state government."

In this case, "the same is simply not true," the three-judge panel said in a unanimous opinion.

The court said the Voters Not Politicians falls somewhere in between the sweeping 2008 proposal and a proposed 2012 constitutional amendment to enshrine collective bargaining rights in the constitution. That proposal, also challenged as a general revision by Citizens Protecting Michigan's Constitution, was allowed on the ballot and rejected by Michigan voters.

Noteworthy: Having a commission draw political maps, rather than the Legislature, in itself complies with the state constitution.

Michigan's 1963 constitution — which is still in force — calls for an eight-member commission to fill that role, with four members appointed by each of the two major parties. But that commission typically deadlocked, resulting in the question going to the Supreme Court for resolution. For the past two censuses, the Michigan Legislature has decided the districts.

The Voters Not Politicians proposal is for a 13-member commission, with four Republicans, four Democrats, and five non-affiliated members.

The politics

Republicans generally support the present redistricting system.

Republican-nominated justices hold a 5-2 majority on the Michigan Supreme Court.

What's more, the two incumbent judges up for election this November — Kurtis Wilder and Elizabeth Clement — would no doubt like to have the support of the Michigan Republican Party and business groups such as the Michigan Chamber of Commerce, both strongly opposed to the Voters Not Politicians proposal.

Attorney General Bill Schuette — the Republican front-runner in the race for governor — has intervened in the case and his attorneys will also argue Wednesday to exclude the proposal from the ballot.

Having said all that, there are reasons not to view the case and the politics around it too cynically.

First, justices swear an oath to uphold the law and the constitution, not a political philosophy. There are many examples in which Michigan Supreme Court justices have decided cases in ways that don't conform with what partisan considerations would dictate.

The three-judge panel of the Michigan Court of Appeals that ruled unanimously to put the gerrymandering question on the ballot included Judge Kirsten Frank Kelly, first appointed to the bench by former Republican Gov. John Engler.

In 2012, Michigan unions backed a ballot proposal to enshrine collective bargaining rights in the state constitution.

The Michigan Chamber of Commerce and other business groups strongly opposed the plan, which would have pre-empted the right-to-work legislation that was signed into law later that year.

But when Citizens Protecting Michigan's Constitution tried to keep the question off the ballot — again arguing that it represented a "general revision" to the constitution, rather than an amendment — the Michigan Supreme Court, which then had a 4-3 Republican majority, ruled unanimously that the proposal was an amendment and should be placed on the ballot.

It was the voters who ultimately said no.

What is gerrymandering? We explain Free Press editorial board members Mike Thompson and Brian Dickerson explain gerrymandering and how it affects elections.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.