Appeal from the SDMI -Case Nos. 1:19-cv-00614; 1:19-cv-00669—Janet T. Neff, District Judge. Rules MI re-District Commission CANbar people with political connections from redistricting commission.
Michigan the poster child of partisan gerrymandering gone horribly wrong
After years, possibly decades of grotesque partisan gerrymandering- the voters of Michigan had enough. In a hard fought victory -which truly started at the grassroots by a small group of voters, who some argued were political novices— this group of grassroot organizers sent a proverbial shockwave through the Michigan State General Assembly. And with devastating authority put the Michigan Republican Party on notice. This group of voters worked hard culminated in to the Michigan voters 2018 ballot measure - I highly recommend you read more about Voters-Not-Politicans Redistricting
A while back I made my littles watch this video because the concept of gerrymandering can be really complicated and this short video is one of the best and simple explanations. Answering the question:
What is Gerrymandering and Why should you care…
First monolithic hurdle -get signatures
As prescribed in the Michigan Constitution 1 “reserve[s]” to “the people” the “power to propose laws and to enact and reject laws, called the initiative.” Michigan Constitution 1963, Article. 2 Sec. § 9. - to trigger the “initiative” and also prescribed by the Michigan Constitution; a Michigan Resident is required to submit; “petitions signed by a number of registered electors, not less than eight percent ... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.”…
The plain reading of the Michigan Constitution and most importantly here, formulaically speaking:
2017 Michigan Governor election, a total of 4,250,585 votes
they only needed 340,047 signatures were required in order to secure a spot for an initiative proposal on Michigan’s 2020 general election ballot.
428,000 signatures obtained and submitted for the MI SoS to verify
November 2018 Proposal 18-2
November 6, 2018, statewide ballot measure (see archived 2018 Michigan Sample Ballot https://tinyurl.com/2nf8x76h23 Proposal 18-2, which would amend Article IV, Sections 1 through 6; Article V, Sections 1, 2, and 4; and Article VI, Sections 1 and 4 of the Michigan Constitution. Thereby establishing a “new” citizen commission, who’s role would be, responsible for drawing the State's congressional and legislative districts. This is the link to the “official” Michigan Secretary of State -2018 Ballot language https://tinyurl.com/42surwxx4
Independent Redistricting Commission Initiative.
"Proposed constitutional amendment to create a commission of citizens for redistricting purposes and authorize the Commission to adopt reapportionment plans for Congressional, State Senate and State House of Representatives districts.”
Composition of the Redistricting Commission
13 registered voters randomly selected by the Secretary of State:
4 each who self-identify as affiliated with the 2 major political parties; and
5 who self-identify as unaffiliated with major political parties.
Prohibit partisan officeholders and candidates, their employees, certain relatives, and lobbyists from serving as commissioners.
Establish new redistricting criteria including geographically compact and contiguous districts of equal population, reflecting Michigan’s diverse population and communities of interest. Districts shall not provide disproportionate advantage to political parties or candidates.
Require an appropriation of funds for commission operations and commissioner compensation.
The 2018 Michigan Proposal 2 - called for an amendment that would substantively replace the current (arguably highly partisan) method of determining the boundaries of;
Congressional Districts
State Senate Districts, and
State House Districts
With the State Senate and House Districts which are largely governed by the legislature. By advocating for a more “balanced”process where an “Independent Citizens Redistricting Commission”. a body that would be created under the 2018-Proposal 2 amendment.
Michigan’s Gerrymandered districts:
The proposal was pretty straightforward and it largely remove the strangle hold that political parties had over previously (and über partisan) drawn districts. Proposal 2 (circa 2018) again was pretty straightforward and Voters in Michigan voted overwhelmingly for Proposal 2.
Following each decennial census:
13 commissioners, largely determined by random draw but representing the two main political parties (referred to as Democrats and Republicans for the purposes of this analysis) and political independents, would adopt redistricting plans using specified criteria as to population, geographic contiguousness, and demographic representation, among other considerations.
Following public hearings, a period for public comment, and testing of proposed plans by appropriate technology, the commission would adopt the plan supported by a majority of members, including at least two Republicans, two Democrats, and two independents.
Often overlooked in the 2018-Proposal 2 Amendment was the much needed vesting of original jurisdiction (back) to the Michigan Supreme Court. That was a major battle and a hard fought victory - the Amendment uses precise language and lays out the process but there’s also an anti-nepotism clause for potential Commissioners (which is important and oddly that too gets overlooked)
“[e]liminate legislative oversight over the independent commission, vest original jurisdiction in the [Michigan] Supreme Court regarding challenges related to the independent commission and create an exception in the power of the executive branch to the extent limited or abrogated by the independent commission.”
See Citizens Protecting Michigan’s Constitution v Secretary of State, Mich App No 343517 (2018).
June 2018 - BRIEF OF AMICUS ATTORNEY GENERAL IN SUPPORT OF APPLICATION FOR LEAVE TO APPEAL: https://tinyurl.com/5asbbysd5
July 6, 2018 - Order Michigan Supreme Court Case No: 157925 Michigan Circuit Court of Appeals Case No: 343517 https://tinyurl.com/34897pep6
Michigan GOP files suit against…
On August 22, 2019 - the MICHIGAN REPUBLICAN PARTY filed suit against JOCELYN BENSON, in her official capacity as Secretary of State. WDMI Case No: 1:19-cv-00669 via ECF: https://ecf.miwd.uscourts.gov/doc1/09915555818
Although marketed to the public and voters as an “independent” commission to redress alleged partisan gerrymandering, the ballot proposal in fact established a partisan public body with commissioner eligibility and selection specifically tied to political affiliation, while also disqualifying countless individuals (and their relatives and associates) for current and past political activity and expression…
MI GOP v MI SoS re 2018 Independent Districting Comm -Filed June 2019
…members to a partisan public office are selected without any involvement of state political parties that historically have played a key role in selecting their respective standard bearers…
MI GOP v MI SoS re 2018 Independent Districting Comm -Filed June 2019 page 3 of Complaint Filed in the WDMI -S
…partisan public office, and in the case of the Michigan Republican Party, places that responsibility instead in the hands of a highly partisan elected official of the opposite political party.
Plaintiffs are not necessarily opposed to the general concept of a redistricting commission, but they vehemently oppose any commission that is structured in a manner that violates their civil rights, as here.
The “aggrieved party” Michigan GOP spent several decades chopping, skimming, cramming, diluting and invested tens of millions in dark money lobbying for the “new” districts in Michigan. Which heavily favored Republicans. Essentially the GOP stacked the deck against Democrats, even if a Democrat won, they actually lost. Like a I said Michigan is ground zero for the far reaching and multi-generational gerrymandering gone so wrong.
We all remember that in 2019 Case 2:17-cv-14148 (or via my public drive) it wasn’t me just throwing around a random case because by now I think my readers understand that if I cite a previous case then it likely ties into the current discussion; https://ecf.mied.uscourts.gov/doc1/097110678477
The district court found that the first enumerated factor—the nature and severity of the constitutional violation—counseled in favor of granting a special election. Id. at 894. The court explained that “because the right to vote is ‘preservative of all rights,’ any infringement on that right . . . strikes at the heart of the substantive rights and privileges guaranteed by our Constitution.” Id. at 890 (citing Reynolds, 377 U.S. at 562–63).
Sixth Circuit Court of Appeals May 27 2021 Ruling
And I’d like to draw your attention to a couple of relevant facts concerning last weeks Opinion from the 3-judge panel
- first it’s “recommended for publication” and then how the ruling ties up all the cases addressed in the first part of this article but on page seven you’ll note that this is what we refer to as a “case of first impression” 7
Michigan’s Independent Citizens Redistricting Commission (the “Commission”), which was established by ballot initiative in the state’s 2018 general election. The Commission is composed of thirteen registered voters—eight who affiliate with the state’s two major political parties (four per party) and five who are unaffiliated with those parties—who must satisfy various eligibility criteria designed to ensure that they lack certain political ties.
6thCCOAs -May 27 2021 Opinion Re MI Commission
Plaintiffs here are Michigan citizens who allege that they are unconstitutionally excluded from serving on the Commission by its eligibility criteria, in violation of the First and Fourteenth Amendments to the U.S. Constitution. They appeal the district court’s dismissal of their Complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We rejected similar—if not identical—arguments to those that Plaintiffs raise here when we affirmed the district court’s earlier denial of Plaintiffs’ motion for a preliminary injunction in Daunt v. Benson, 956 F.3d 396 (6th Cir. 2020) (“Daunt I”). Plaintiffs’ arguments are no more persuasive this time around. For the reasons that follow, we hold that the Commission’s eligibility criteria do not offend the First or Fourteenth Amendments, and therefore we AFFIRM the judgment of the district court.
Now most only focused on the formation of the Commission but you may have unwittingly overlooked:
…called for the amendment to “[e]stablish new redistricting criteria including geographically compact and contiguous districts of equal population, reflecting Michigan’s diverse population and communities of interest. Districts shall not provide disproportionate advantage to political parties or candidates.”
6thCCOAs - May 27, 2021 Order/Opinion
Remember how I previously mentioned that the Michigan Constitutional Amendment also] contained anti-nepotism language - well even the 6thCCOAs panel made note of that precise language:
…the Amendment bars from the Commission “a parent, stepparent, child, stepchild, or spouse” of an individual in any of the above categories. Id. at § 6(1)(c). Commissioners are ineligible for partisan elected offices in Michigan for five years from the day of their appointment….
Secretary of State then randomly selects sixty applications from each of the affiliated pools and eighty applications from the unaffiliated pool, using a statistical weighting method to ensure that each of the three remaining sets “as closely as possible, mirror the geographic and demographic makeup of the state”
Because the goal of the Commission is to take partisan nonsense out of re-districting and if this could be a model for other States who have horrible gerrymandered districts.
2019 - 6thCCOAs, Order
Remember that in late 2019 a 3-Judge Panel found the Michigan’s (botched) re-districting was (sorry for the yelling) UNCONSTITUTIONAL via SDMI-ECF https://ecf.mied.uscourts.gov/doc1/097110678477
The constitutional violations 8 in this case are particularly severe. Evidence from numerous sources demonstrates that the map-drawers and legislators designed the Enacted Plan with the specific intent to discriminate against Democratic voters. A wide breadth of statistical evidence indicates that the Enacted Plan’s partisan bias has proven severe and durable; it has strongly advantaged Republicans and disadvantaged Democrats for eight years and across four separate election cycles."
…Because we find that these constitutional violations will reoccur if future elections are held under the Enacted Plan, we HEREBY ENJOIN the use of the Challenged Districts in any future election.
The Federal Court Opinion adptly uses Marburg v Madison9 is one that you should always pay attention because this case was the foundation of our Judicial System which was largely adopted by British Common Law…sometimes I think most Americans forget just how pivotal that case was
“immunize state congressional apportionment laws which debase a citizen’s right to vote from the power of courts to protect the constitutional rights of individuals from legislative destruction, a power recognized at least since our decision in Marbury v. Madison [1 Cranch 137, 2 L.Ed. 60 (1803)] . . . . The right to vote is too important in our free society to be stripped of judicial protection.”
As part of the application, prospective commissioners must “attest under oath” that they satisfy the Amendment’s eligibility criteria and “either that they affiliate with one of the two political parties with the largest representation in the legislature (hereinafter, the ‘major parties’), and if so, identify the party with which they affiliate, or that they do not affiliate with either of the major parties.” Id. at § 6(2)(a)(iii).
So yes, last week’s 6thCCOAs Ruling is very important and I should not have waited so long to write this article -but it required a long time for me to read the nearly 1,200 pages in dozens of Court filings - in order to fully explain why this case matters.
Moreover (this is really important so please pay attention because this isn’t my self indulgent pontification —these are the facts contained within last week’s Opinion:
The three-judge circuit court of Appeals panel did note that “the eligibility criteria might discriminate against some individuals on a partisan basis”. But it also noted that the state has a “compelling interest in cleansing its redistricting process of partisan influence.” Judges Moore and Gilman joined in and signed the majority opinion, which held; “the eligibility criteria impose only limited burdens on applicants to the commission, and are therefore constitutional”
Writing separately, Judge Readler actually rejected the articulated reasoning in the majority opinion but ultimately concurred in the judgment. He concluded that the court should defer to the “state’s prerogative in organizing its government, including its election system.” -in general I know it sounds counterintuitive but reading dissents is the only way to fully understand the totality of the Opinion and in my industry we tend to glean far more in dissents
Again you can access the 6thCCOAs Website: https://www.opn.ca6.uscourts.gov/opinions/opinions.php or via this direct link https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0119p-06.pdf or you can pull down a highlighted/annotated copy from my public drive. And yes I understand that this article is incredibly dense on Court filings but I can not emphasize enough how important the 6thCCOAs ruling was/is. Again take your time reading the documents but I trust my readers/followers intellectual capacity to understand why this is so important.
I am going to be out of pocket for most of the morning because shocker I actually do have a J-O-B. ¯\_(ツ)_/¯ -Filey or is it Filey-Fly - for the umpteenth time I’m not on Twitter and have zero plans to return to that cesspool. <snort>
The case came before us for the first time on Plaintiffs’ appeal from the district court’s denial of their motion for a preliminary injunction. We affirmed. See Daunt I, 956 F.3d at 401. Observing that no federal court had passed upon the constitutional standard applicable to challenges to the eligibility criteria for an independent redistricting commission, let alone the constitutionality of eligibility criteria for a redistricting commission resembling the Commission’s, we identified and applied the two possibly applicable analytical frameworks.
US Supreme Court Ariz. State Leg., 135 S. Ct. at 2658 (Vieth, 541 U.S. at 292):
This Court has described extreme gerrymandering as incompatible with this fundamental principle of our form of government. Extreme gerrymandering turns the “true principle” of our Republic on its head, permitting politicians to choose the people whom they represent rather than the reverse. See AIRC, 135 S. Ct. at 2677 (noting “the core principle of republican government … that the voters should choose their representatives, not the other way around”
Glad to see this. Hopefully it puts the GOP in TX on notice for their egregious gerrymandering, too.
My vote counted!!! I knew they would fight it and grateful they lost.