One of the more obscure, but significant, victories of the 2018 midterm election was a ballot initiative in Michigan that set up an independent redistricting commission. This was a reaction to egregious partisan gerrymandering on the part of the Republican majority in the state legislature. The proposed commission won 61 percent of the vote. The Michigan GOP immediately leaped into court challenging the constitutionality of the commission. From the Brennan Center:

The Michigan initiative created a more balanced and impartial map-drawing process, building on successful redistricting reforms in states like California and Arizona. Instead of a process where one party can hold all the cards, commission membership must be politically balanced — including, for the first time, guaranteed seats for independents and those not affiliated with the two major parties. And to be approved, a map must win not only support from a majority of the commission but have the support of at least two Democrats, two Republicans, and two members of the commission not affiliated with either of the two major parties. Strong conflict-of-interest rules also ensure that lobbyists, legislative staff, and others with too close a tie to politicians who would benefit from redistricting are kept from serving on the commission.

Yet the Michigan Republican Party...[argues] that political parties have the right to directly appoint those who serve on the commission. If the party has its way, this would greatly expand and constitutionalize the role of political parties in redistricting, transforming commissioners from government officials to mere agents of the parties.



On Wednesday, the Sixth Circuit Court of Appeals unanimously upheld the constitutionality of the commission. In the majority opinion, Judge Karen Nelson Moore dismissed the constitutional challenges to the commission, especially the argument that restrictions on what the commission members may discuss, and with whom, violated the First Amendment. In his concurrence, Judge Chad Readler wrote plainly:

That structuring aspect is at play here in two respects. At issue is how Michigan selects public officials to serve on a public body (the redistricting commission). And once selected, those commissioners will assist in crafting the legislative districts from which other public officials are chosen. That the Michigan electorate enacted the commission and its membership rules directly only strengthens the rationale for allowing these restrictions to stand...

Michigan voters decided to prohibit those they deemed to be “political insiders” from drawing legislative lines. Whether one views that decision for the better or worse, it plainly is not “irrational.”...it is refreshing to see the Court embrace as a central principle a state’s prerogative in organizing its government, including its election system. That principle is a paramount aspect of state sovereignty, and a cornerstone of federalism.

If, as I suspect, this case ends up at the Supreme Court, which under Chief Justice John Roberts consistently has been a voting rights hellhole, Readler’s concurrence may give Roberts and his fellow conservatives a way out—unless, of course, the Federalist Society Five decide to abandon their devotion to, well, federalism. Oh, lord.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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