Michigan Supreme Court says let voters decide gerrymandering proposal

Kathleen Gray , Paul Egan | Detroit Free Press

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

LANSING — A proposal to create a bipartisan commission to draw Michigan's political lines — intended to stop political gerrymandering — will appear on the Nov. 6 ballot, the Michigan Supreme Court ruled late Tuesday.

The ruling was a major victory to the Voters Not Politicians group, which had gathered more than 400,000 signatures in an effort to put the proposal on the ballot. The proposal would shift the responsibility for drawing district lines from the party in control of the Legislature to a 13-member bipartisan commission.

"Because VNP’s proposal would leave the form and structure of the government essentially as it was envisioned in the 1963 constitution, it was not equivalent to a new constitution and was therefore a permissible amendment," the justices ruled in a 4-3 decision.

Voting in favor of placing the proposal on the ballot were: Justices David Viviano, who wrote the decision, was joined by Elizabeth Clement, Richard Bernstein and Bridget McCormack.

The majority opinion said the proposal does not substantially change the powers of the three branches of government and the proposed commission is "materially similar to the commission provided for" in Michigan's 1963 Constitution. That commission became inactive after the court determined it couldn't be separated from redistricting standards ruled unconstitutional by the U.S. Supreme Court.

"The present constitution does not accord the Legislature any role in the redistricting or apportionment process; instead, as in VNP’s proposal, a commission is placed in charge," the majority opinion state, adding that other states have also changed how legislative lines are drawn through ballot proposals.

Viviano and Clement were both named to the bench by Republican Gov. Rick Snyder. Bernstein and McCormack are the court's only two Democratic nominees.

In a dissent, Chief Justice Stephen Markman, joined by Justices Brian Zahra and Kurtis Wilder, said the proposal amounted to a general revision — not an amendment — of the state constitution and therefore it could only be approved through a constitutional convention.

In dissenting, Markman said the proposal would impose “governance by 13 randomly selected people entirely lacking in any democratic or electoral relationship with the other 10 million people of this state or its elected representatives.”

The people have the power to make such a monumental change, he wrote, but only through a constitutional convention, where “a serious and considered public conversation … affording opportunities for sustained and focused debate, give-and-take, compromise, and modification” could take place.

The highly anticipated ruling came in a lawsuit filed by a group backed by the Michigan Chamber of Commerce against a ballot proposal that would shift how legislative district lines are drawn from the party in control of the Michigan Legislature to a bipartisan commission.

Read more:

Michigan Supreme Court to hear arguments on plan to fight gerrymandering

League of Women Voters joins Michigan Democrats in lawsuit targeting gerrymandering

The Voters Not Politicians proposal calls for a 13-member commission, with four Republicans, four Democrats, and five non-affiliated members, to redraw the district lines for state and federal offices based on population numbers compiled by the U.S. Census every 10 years.

The group celebrated the decision that came shortly before 10:30 p.m. on the last day of the Supreme Court's session before a summer break.

“Our state constitution begins with, ‘All political power is inherent in the people.’ The court’s decision upholds our right as citizens to petition our government for positive change,” said Katie Fahey, founder and executive director of Voters Not Politicians. “Hundreds of thousands of voters signed their name to have the chance to vote to bring the redistricting process out in the open. Michigan voters are ready for a transparent redistricting process, where election district lines represent the people — not special interests."

Kathay Feng, national redistricting director for Common Cause, which supports the ballot proposal, said, “This all-volunteer effort started so citizens could end a corrupt system in which self-interested politicians manipulate districts for political advantage behind closed doors. Now Michigan voters will have the opportunity to make their voices heard.”

A group called Citizens Protecting Michigan's Constitution, financially backed by the Michigan Chamber of Commerce, sued 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 Michigan Chamber of Commerce, in a statement issued early Wednesday morning, said it would accept the court's decision, but it was "very disappointed" in the majority opinion.

Primary Election Voter Guide: Get to know the candidates, proposals on your ballot

"Unfortunately, Michiganders are now left to wonder what the rules are for future petition drives and ballot proposals," said Rich Studley, president and CEO of Michigan's most powerful business lobbying group.

Opponents of the ballot proposal said the Supreme Court wilted under pressure from activists supporting the anti-gerrymandering question.

“Today we’ve witnessed the rule of bullying, not the rule of law” said Tony Daunt, Executive Director of the Michigan Freedom Fund. “In the face of threats, bullying and intimidation, the justices of the state Supreme Court bowed to political pressure instead of protecting Michigan’s Constitution. They have abdicated their responsibility to the rule of law.”

There was a question over whether two of the justices — Clement and Wilder, who were appointed to the court last year by Snyder and are up for re-election this year, should recuse themselves from the case after the chamber hosted fund-raisers for their campaigns. Neither did recuse themselves and they were split on the decision.

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

Republicans, who currently control all branches of Michigan government, redrew the lines after the 2010 U.S. census. Since then, the GOP has consistently won a higher percentage of seats than their share of the statewide vote would dictate.

The ballot proposal 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.

The justices were to consider not whether gerrymandering is a problem in Michigan, but whether the Voters Not Politicians proposal meets constitutional requirements for a 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 were other legal issues at play, but a major one was 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.

The four justices were clear in their decision that the VNP proposal was closer to the existing state constitution than the way districts are drawn now.

"The last time the voters had direct input on this issue, they opted for apportionment and redistricting to be conducted by a commission, and the Legislature now exercises a power that the constitution of 1963 expressly denied to it," the opinion stated

Contact Kathleen Gray: 313-223-4430, kgray99@freepress.com or on Twitter @michpoligal