Paul Egan

Detroit Free Press

LANSING -- Michigan Democrats are going to federal court to try to undo congressional and legislative electoral districts they say are unlawfully gerrymandered to Republican advantage.

They are hoping to replicate a recent success by Wisconsin Democrats, who got legislative districts in that state struck down through a 2016 federal lawsuit. The November ruling in the Wisconsin case was significant because it was a rare instance in which a federal court struck down legislative districts on the grounds of partisan gerrymandering, rather than racial gerrymandering.

Southfield attorney Mark Brewer, who is representing the plaintiffs, said he sent registered letters Tuesday to about 60 individuals who could be witnesses in the pending lawsuit, putting them on notice not to destroy records about how the districts were created in 2011. At the time, both chambers of the Legislature, plus the Michigan Supreme Court, were under GOP control, as they remain today.

"In 2011, the Republican-controlled Legislature intentionally and effectively gerrymandered the maps to benefit Republican state and federal legislators and diminish the effect of the votes of Democratic voter," Brewer, of the law firm Goodman Acker, said in the letter giving notice of the lawsuit.

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Democrats blame gerrymandered districts for giving them far less legislative punch than the size of their vote.

In 2012, Michigan Democrats received 52% of the votes cast for state House, but won 46% of the seats. In 2014, Democrats received 51% of the votes for state House, and won 43% of the seats. And in 2016, Democrats received just under 50% of the votes for state House, and again won 43% of the seats.

In congressional races in 2016, Democrats received 47% of the votes, but won just 36% of the seats, records show.

"We think we have good evidence of partisan gerrymandering in Michigan that meets the standard set by the court in Wisconsin," Brewer, a former chairman of the Michigan Democratic Party, told the Free Press.

"There is evidence the Republicans did it intentionally."

Brewer said the lawsuit will be filed in U.S. District Court in Detroit as soon as it is ready, but could not say when that will be. Once filed, the case will be heard by three judges — one federal judge in Detroit chosen by a blind draw and two judges appointed by the U.S. 6th Circuit Court of Appeals.

The suit could change the way congressional and state legislative lines are drawn in 2021, using data from the 2020 census.

It's not uncommon for both Republicans and Democrats to attempt to draw district lines to their advantage when they wield legislative control; sometimes packing voters of the other party into as few districts as possible to water down their overall impact; sometimes dividing opposition voters between districts so they don't form a majority in either.

In the case in Wisconsin's western district, which is being appealed directly to the U.S. Supreme Court, the court used a new test, called the "efficiency gap" to determine if partisan advantages gained through the drawing of district lines is excessive. The test relies on a comparison of how many wasted votes are cast by supporters of each party.

Examples of wasted votes are those cast far in excess of the number needed to win, due to the partisan make-up of the district. In Michigan in 2016, for example, Rep. Wendell Byrd, D-Detroit, defeated his only opponent in Michigan's 3rd District, Republican John Broderson, 28,766 votes to 955 votes. In the 88th District, in Ottawa County, Republican Rep. Roger Victory defeated his only opponent, Democrat Kim Nagy, 34,356 votes to 11,410 votes.

The Wisconsin panel of federal judges ruled 2-1 that district lines approved by the Wisconsin Legislature deprived Democratic voters of their rights to be represented, violating the First and Fourteenth amendments to the U.S. constitution.

Brewer said he's calculated efficiency gaps in Michigan and they are similar to those in Wisconsin.

Robert LaBrant, who is senior counsel at the Republican consulting firm the Sterling Corp. and who, like Brewer, has had extensive involvement with redistricting efforts in Michigan, said it's likely a three-judge panel in Michigan would wait to find out how the U.S. Supreme Court handles the Wisconsin case.

"It will be a fascinating time period ahead of us," and Justice Anthony Kennedy could well be the key vote in determining how the Supreme Court rules, LaBrant said. But moving to a Michigan redistricting system built around the efficiency gap is "a pretty high bar for the Democrats to get over," he said.

To move to a system in Michigan that minimizes wasted votes would involve throwing out years of established principles related to how legislative lines are drawn, such as using counties as basic building blocks and drawing lines along existing municipal boundaries, he said. Avoiding wasted votes in Detroit would involve using spoke-like districts that extend from Detroit into western Wayne and Oakland and Macomb counties, LaBrant said.

Brewer said he sent letters Tuesday to about 60 people who were involved in the last redistricting effort, from Gov. Rick Snyder, to current and former Republican and Democratic lawmakers, to Republican consultants such as LaBrant and Jeff Timmer.

"You will be either a party to or recipient of a subpoena in the forthcoming litigation, or are an attorney for one of them," says the letter.

"By this letter you have been put on notice of the anticipated litigation and your corresponding ongoing duty to preserve physical documents and electronically stored information that may be relevant to the lawsuit."

Brewer said the plaintiffs in his planned lawsuit are Michigan Democratic voters, but the Michigan Democratic Party is not bankrolling the lawsuit. He said the law provides for the plaintiffs' attorneys to recoup their legal costs, if the lawsuit is successful.

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