Michigan Republicans sue to stop redistricting commission before it starts

A group of Michigan Republicans filed a federal lawsuit Tuesday seeking to block the state’s voter-approved redistricting commission, saying it unconstitutionally blocks some residents from serving.

The suit ‒ filed by Michigan Freedom Fund Executive Director Tony Daunt, state Sen. Tom Barrett, Board of State Canvassers member Norm Shinkle and other prominent Republicans ‒ contends the rules governing who can serve on the commission unfairly exclude certain people with political or partisan roles and their family members.

They’ve asked a federal judge to stop Democratic Secretary of State Jocelyn Benson from proceeding to seat the commission and, further, invalidate the entire commission. 

“This is a fundamental question of Michigan citizens’ ability to participate in the political process without being punished for that participation,” Daunt told Bridge Magazine in an interview Tuesday.

“This commission flips that on its head and says if you’re already engaged, if you’re already active, you’re not allowed to serve on this and neither are your family members,” he said. “Of everything, I think that’s the most egregious and ridiculous part of that. Simply by virtue of being married to someone who is (politically active) you’re prohibited, even if you have 180-degree-opposed political beliefs.”

Jamie Lyons-Eddy, director of campaigns and a founding member of Voters Not Politicians, the group behind the ballot drive that created the commission,  suggested Tuesday the lawsuit is a political power play and said VNP is confident the commission will survive the legal challenge. 

“It’s no surprise that politicians – who directly benefit from drawing their own election maps and choosing their own voters – want to undermine the voice of voters again,” Lyons-Eddy said in a statement. “Now that citizens are in charge of a fair, impartial, and transparent redistricting process, we know that some politicians who will lose power to draw maps in secret for their own benefit will make a last-ditch effort to hold on to it.”

Benson, the only named defendant in the suit, also released a statement saying her office remains determined to carry on efforts to establish the commission. 

"Voters spoke loud and clear last November that they want an independent, citizen-led commission ‒ not partisan politicians ‒ responsible for drawing district lines," her statement said. "My office will stay focused on engaging the public and encouraging full participation in a transparent application and random selection process for this commission, which has the opportunity to map Michigan's future."

A state constitutional amendment requiring the creation of a redistricting commission was approved by more than 60 percent of Michigan voters last November. It calls for the creation of a 13-member commission comprising four Republicans, four Democrats and five people unaffiliated with either party who will be responsible for drawing legislative and congressional districts in Michigan following the 2020 U.S. Census. 

Currently, lawmakers in whichever party controls the state Legislature drew state political lines, leading to charges of political gerrymandering. That system appears destined to stay in place through the 2020 elections.  

In a stated effort to reduce political influence, the constitutional amendment creating the commission excluded several categories of people from serving. That includes anyone who has been, within the last six years: 

• A partisan candidate or elected official in local, state or federal government
• An officer in a political party
• A consultant or employee for a political candidate, campaign or political action committee 
• State and federal legislative staffers
• State and federal registered lobbyists and their employees
• Unclassified state employees, except those who work for public universities, the courts or the armed forces
• The parent, child or spouse of any of the above people, including stepparents and children

Voters Not Politicians argued the exclusions were necessary to prevent people with significant political interests or connections from manipulating the process to advantage one party over another.

But the GOP plaintiffs argue the exclusions are heavy-handed and violate their rights under the First and 14th Amendments to the U.S. Constitution.

“There is not a sufficient ‘fit’ between the exclusion of Plaintiffs and the asserted interests of transparency, impartiality, and fairness that motivated the establishment of the Commission,” the suit reads. “In particular, the selection system may actually inhibit transparency, impartiality, and fairness because eligible applicants may be no less partisan than those who fall into the excluded categories.”

Plaintiffs contend that the First Amendment grants them the right to political association and the 14th protects them from discrimination — such as exclusion from a paid government position that is offered to others — for exercising that association.

By excluding residents with recent political backgrounds or ties, “the State has unconstitutionally conditioned eligibility for a valuable benefit on their willingness to limit their First Amendment right to petition government,” plaintiffs wrote.

“The exclusionary factors also violate the Equal Protection Clause because they burden only individuals that fall into set categories that may indicate partisan bias, while imposing no restriction on individuals who may be just as partisan, or more partisan.”

Daunt estimated at least a half-million people would be barred from serving on the commission under the new rules. That’s “a conservative estimate,” he said, based on how many people are active in state and county parties and lobbying activities, multiplied by how many people are in the average family.

The lawsuit is supported by the Fair Lines America Foundation, a Virginia-based nonprofit that is involved in national redistricting efforts, according to a statement Tuesday from Scott Walker, finance chairman of the National Republican Redistricting Trust and the former Wisconsin governor.

"No American should be barred from holding a government position because they, or someone they are related to, exercised their Constitutional rights," Walker's statement reads. "This lawsuit aims to restore the rights of all Michiganders to freely participate in the political process without the threat of government sanction."

The U.S. Supreme Court last month ruled that federal courts have no role in determining when partisan gerrymandering – the process of drawing legislative and congressional maps to favor one political party over another – has occurred, leaving the process in the hands of states and Congress. That decision effectively killed a similar federal case pending in Michigan related to this state’s 2011 redistricting process.

Daunt said that high court decision didn’t deter his group from filing in federal court because the legal questions put forward in the suit filed Tuesday are fundamentally different.

“That case was about lines and how they’re drawn,” Daunt said, whereas this case questions whether people can be excluded from serving on the redistricting commission. Federal court is the appropriate avenue, he said, because the suit deals with U.S. constitutional protections.

Eric Lupher, president of the nonpartisan Citizens Research Council of Michigan, agreed that the suit filed Tuesday addresses a different question than the recent federal gerrymandering cases in North Carolina and Maryland.

A lawsuit that contends someone’s U.S. constitutional rights were violated must be addressed in federal courts, said Lupher, who also noted that he had not yet read the complaint. 

“My gut reaction is that it’s apples and oranges, it’s two different matters,” Lupher told Bridge. 

But Lupher also cited some vulnerabilities in Republicans’ lawsuit arguments. 

He noted, for instance, that the commission exclusions are not a lifetime ban on participation, just for a number of years. Nor is eligibility for the commission a guarantee an applicant will be chosen. With legislators from each party able to strike people from the pool of potential commissioners, lawmakers and  lobbyists “would probably be some of the first targeted for elimination from the pool if they were eligible to participate,” he said.

Justin Long, an associate professor at Wayne State University Law School who focuses on state constitutional issues and federal courts, told Bridge that the U.S. Supreme Court's majority ruling in the Maryland and North Carolina gerrymandering cases was in part based on what the justices determined was the lack of a clear legal standard to decide when gerrymandering had occurred.

It would be difficult to argue that a standard doesn't exist to interpret law in this new Michigan case, Long said.

"It’s not about whether gerrymandering is required or permitted or prohibited," he added. "It’s simply about, here is a state office, a high-ranking important state office with control over a topic that the Supreme Court has said is extremely political, and do we as individuals have a right to be considered for that office?"

And while the plaintiffs could have filed their case in state court, Long said, it's possible they chose federal court out of concern that state judges might be more favorable to the Michigan constitution, and because "state judges are elected and the (redistricting) constitutional amendment was and is enormously popular."