GOP justices face tough choice in gerrymandering case

Brian Dickerson | Detroit Free Press

The integrity of Michigan's highest court will be severely tested next week when two Republican justices facing voters for the first time this November confront a politically charged case whose outcome could end their party's stranglehold on state government.

Kurtis Wilder and Elizabeth Clement are two of the seven state Supreme Court Justices who will decide whether a grass-roots ballot initiative to change the way Michigan draws its legislative and congressional district boundaries goes on the November ballot.

Gov. Rick Snyder appointed Wilder and Clement to the state Supreme Court last year. Clement, who formerly served as the governor's chief legal counsel and deputy chief of staff, is facing her first election.

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Wilder won election four times after then-Gov. John Engler appointed him to the state Court of Appeals in 1998, but is making his first bid for election to the state's highest court

Both justices have received financial backing from the Michigan Chamber of Commerce, which is also bankrolling the campaign to stop the anti-gerrymandering initiative in its tracks. To complicate matters, one of the lawyers spearheading the Chamber's legal challenge, Eric Doster, is married to the woman who serves as treasurer of both justices' election campaigns.

A non-partisan group called Voters Not Politicians says Republicans who control the state Legislature have manipulated the state's current political boundaries to assure that their party maintains partisan control of the state's legislature and congressional delegation even when Democratic candidates get more votes.

Under a constitutional amendment proposed by the group, authority over the redistricting process would be wrested from the majority party in the state Legislature and transferred to a 13-member citizens commission composed of four voters who identify themselves as Republicans, four who identify as Democrats, and five who identify as independents.

A unanimous Michigan Court of Appeals panel last month ordered Secretary of State Ruth Johnson to place VNP's anti-gerrymandering proposal on the November ballot, ruling that the group had met all of the legal requirements to force a popular vote on the proposed amendment.

Next Wednesday, the state Supreme Court will hear an appeal in which a Republican group opposed to the amendment argues that only a constitutional convention is permitted to adopt changes as sweeping as those VNP has proposed.

Anxieties and expectations

The proposed amendment's proponents worry that Wilder or Clement will join with other Republican justices who aren't up for re-election to keep their anti-gerrymandering petition off the ballot.

Conversely, some Republicans have warned that their party could withdraw its support for Clement or Wilder if either justice votes to uphold the Court of Appeals decision and keep the VNP proposal on the ballot.

Bill Ballenger, a former Republican state legislator, predicts in his widely read political newsletter that "there may be a nuclear explosion at the Republican state convention" next month if Clement and Wilder fail to block VNP's proposal.

Ballenger, who is confident Wilder and fellow Republican justices Stephen Markman and Brian Zahra will vote to keep the proposal off the ballot, says Republicans delegates might refuse to nominate Clement if she and another independent-minded GOP justice, David Viviano, "collude with (Democratic justices Bridget) McCormack and (Richard) Bernstein" to uphold the lower court ruling.

"Clement can expect that funding from the Republican Party and its major donors and allies in her election campaign WILL DRY UP," Ballenger wrote in the most recent issue of his newsletter. . .

"If Viviano also 'goes rogue,' he must await his fate in 2024," Ballenger added, noting that Viviano won't face re-election for another six years.

Who they know

Surprisingly, lawyers representing VNP have not requested that any justice disqualify him- or herself from hearing the case, despite Ballenger's warning that any Republican justice who votes to keep the groups anti-gerrymandering amendment on the ballot faces swift reprisals.

Nor have Clement or Wilder given any indication that they will voluntarily recuse themselves, although both issued statements acknowledging their "professional association" with Mary Doster on Wednesday after the clerk of the Michigan Supreme Court, Larry Royster, alerted both justices that the relationship "could be perceived as creating an appearance of impropriety."

Both justices said their association with Mary Doster would not preclude them from giving VNP's attorneys an impartial hearing.

Mary Doster has also served as the campaign treasurer for GOP justices Viviano and Zahra. Her husband, Eric Doster, is a longtime Republican operative who played a prominent role in his party's wildly successful effort to redraw the state's political map to GOP advantage after the 2010 census

Anonymous no more?

Today, with the November Supreme Court election more than three months away, hardly any Michigan voter has ever heard of Wilder or Clement or would recognize either as a member of Michigan's highest court. In most elections, that lack of name recognition would be a serious liability.

But anonymity has historically been a boon to justices seeking re-election, who, unlike incumbents in other races, are identified by their titles. In down-ballot judicial races where most voters don't recognize the name of any candidate, "Supreme Court Justice John Doe" beats plain-old "John Doe" almost every time.

So Clement and Wilder would probably be happiest if the only thing most voters knew about them is that they already hold the job they want to keep doing.

But the importance of the VNP case, and the likelihood that any high court ruling to strike it from the ballot would be perceived as a partisan payback to Republican donors, makes it unlikely that either justice will remain anonymous for long.

Whatever they do, Clement and Wilder are sure to acquire notoriety, either as the justices who betrayed their own party or the apparatchiks who conspired to deprive voters of a chance to reform Michigan's corrupted redistricting process.

Brian Dickerson is the editor of the Free Press' editorial page. Contact him at bdickerson@freepress.com.