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Redistricting Trouble in Michigan

A three-judge panel ruled that Michigan has engaged in unconstitutional gerrymandering.

Last November, the people of Michigan voted on a ballot initiative that would take the redistricting power away from the state legislature (as prescribed by Article I, Section 4 of the U.S. Constitution) and give it to an independent redistricting commission.

The initiative was approved with 61% of the vote.  But it won’t take effect for some time.  We have to wait for the census and for the commission to be set up.

In the interim, the state legislature finds its power being challenged by lawsuits and the opinions of Clinton-appointed federal judges. 

On Thursday, MLive reported that,

“Thirty-four of Michigan’s congressional and legislative districts need to be re-drawn for the 2020 election, according to three judges who ruled on a gerrymandering case Thursday. The judges ruled in favor of the League of Women Voters and Democratic plaintiffs who alleged in a lawsuit the state’s last redistricting process gave an unfair advantage to Republicans and violated voters’ Constitutional rights. The ruling found 27 of the 34 districts challenged in the suit violate the plaintiffs’ First and Fourteenth Amendment rights by diluting the weight of their votes, and that all 34 violate their First Amendment right to association. The Republican-led Senate plans to appeal the ruling.”

When I wrote about the redistricting proposal, I briefly mentioned the status of partisan gerrymandering in the United States.  I said this regarding Article I, Section 4, 

It’s obvious that gerrymandering is not mentioned directly, but the practice existed prior to the constitution. This clause gives all manner of authority related to elections to the legislatures of states.

That clause recognizes the role of congress in regulating some aspects of elections. Racial gerrymandering was prohibited by act of congress. Partisan gerrymandering has been addressed by various Supreme Court cases with no clear process for evaluating those claims.

That last sentence is relevant now.  Partisan gerrymandering inhabits a grey area of constitutional law.  It hinges on whether it is justiciable or non-justiciable. Black’s Law Dictionary defines justiciable as “Proper to be examined in courts of justice.” Collins Dictionary of Law defines it as “capable of being determined by a court of law.”

 In 1986, the Supreme Court said in Davis v. Bandemerthat partisan gerrymandering is justiciable. The topic was revisited in 2004 in Vieth v. Jubelirer.  The syllabus for Vieth says this,

Political gerrymanders existed in colonial times and continued through the framing. The Framers provided a remedy for the problem: the Constitution gives state legislatures the initial power to draw federal election districts, but authorizes Congress to “make or alter” those districts. U.S. Const., Art. I, §4. In Bandemer, the Court held that the Equal Protection Clause also grants judges the power–and duty–to control that practice. Pp. 4—7.

    (b) Neither Art. I, §2 or §4, nor the Equal Protection Clause, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting. Pp. 7—37.

        (1) Among the tests for determining the existence of a “nonjusticiable” or “political” question is a lack of judicially discoverable and manageable standards for resolving the question. Baker v. Carr, 369 U.S. 186, 217. Because the Bandemer Court was “not persuaded” that there are no such standards for deciding political gerrymandering cases, 478 U.S., at 123, such cases were justiciable. However, the six-Justice majority in Bandemer could not discern what the standards might be. For the past 18 years, the lower courts have simply applied the Bandemer plurality’s standard, almost invariably producing the same result as would have obtained had the question been nonjusticiable: judicial intervention has been refused. Eighteen years of judicial effort with virtually nothing to show for it justifies revisiting whether the standard promised by Bandemer exists. Pp. 7—11.

In 1986, Justice O’Connor dissented from the majority’s decision that the issue should be decided by the courts.  She says,

“Today the Court holds that claims of political gerrymandering lodged by members of one of the political parties that make up our two-party system are justiciable under the Equal Protection Clause of the Fourteenth Amendment. Nothing in our precedents compels us to take this step, and there is every reason not to do so. I would hold that the partisan gerrymandering claims of major political parties raise a nonjusticiable political question that the judiciary should leave to the legislative branch, as the Framers of the Constitution unquestionably intended.”

In writing for the plurality in Vieth, Justice Scalia says,

“The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, 5 Stat. 491, Congress provided that Representatives must be elected from single-member districts “composed of contiguous territory.” See Griffith 12 (noting that the law was “an attempt to forbid the practice of the gerrymander”). Congress again imposed these requirements in the Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts “contai[n] as nearly as practicable an equal number of inhabitants,” 17 Stat. 28, §2. In the Apportionment Act of 1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, 37 Stat. 13, but were not thereafter continued. Today, only the single-member-district-requirement remains. See 2 U.S.C. § 2c. Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, §4 to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting.”

O’Connor also says that affirming the court’s authority in this area creates an impossible standard.

“If members of the major political parties are protected by the Equal Protection Clause from dilution of their voting strength, then members of every identifiable group that possesses distinctive interests and tends to vote on the basis of those interests should be able to bring similar claims. Federal courts will have no alternative but to attempt to recreate the complex process of legislative apportionment in the context of adversary litigation in order to reconcile the competing claims of political, religious, ethnic, racial, occupational, and socioeconomic groups. Even if there were some way of limiting such claims to organized political parties, the fact remains that the losing party or the losing group of legislators in every reapportionment will now be invited to fight the battle anew in federal court.” 

This idea could also be taken further, going so far as to be concerned with the disposition of individual voters.

Scalia’s use of the Baker v. Carr framework perfectly explains why the issue of partisan gerrymandering has to be left to the state legislatures or to Congress.

That frameworks lays out six considerations for the court when deciding whether they should stick their nose in an issue.

“[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id., at 217.

I’ll refrain from clogging up this article with more lengthy quotes. I’ll work through those six points.

I think it is fairly obvious that the text of the constitution delegates the election power to the state legislatures and to congress if it feels the need to get involved. 

The constitution also says absolutely nothing about the rights of political parties in redistricting.  The Equal Protection Clause provides no means of addressing this. 

The courts have already demonstrated a lack of respect for congress and the states by addressing issues where there is no law. 

The most recent case law on the subject, Gill v. Whitford, illustrates this fifth point. During oral arguments, the court was presented with various ways of measuring partisan bias in redistricting. The court ended up dismissing the case.  Had they not, they would have had to commit to some creation of political scientists instead of the text of the law or the constitution.

That sixth point is currently on display and has been on display since 1986. Scalia himself said that the lower courts have no clue how to apply Bandemer.  This case from Michigan is merely the most recent ruling on the subject.

So let’s get back to the situation in Michigan. NPR says, “Now, lawmakers in the GOP-controlled legislature will have to go back to the drawing board to come up with new lines for those districts that are agreeable to Michigan’s Democratic governor. The court says the legislature must pass and the governor must sign into law new maps by Aug. 1; otherwise the court will draw the new maps itself.” 

With that prospect in mind, judicial control of the elections power, we can look at why this case has gone the way it has and whether the supposed violation justifies this intervention.

According to the Detroit News, “Republicans have denied overt political bias in the map-making process. But email communications by staff entered into evidence in the federal lawsuit included partisan references and commentary on the prospects of maintaining GOP power, including a request to “cram Dem garbage” into certain districts and praise for “giving the finger” to a Democratic lawmaker.”

While there is discussion that these intentions drove this case in the plaintiffs’ favor, The New York Times reports that the court seems to think that overt political bias is unnecessary to prove partisan bias in redistricting.  The existence of the map, absent “cram dem garbage,” alone justifies this judicial intrusion. 

The framework mentioned by Scalia cannot support the district court’s ruling.  Statements of a political nature cannot change the inherent authority of the state legislature.  And since congress has chosen to avoid restricting partisan gerrymandering, the courts only have shoehorned constitutional claims, which, as this article shows, are untethered from the text, the history, and it even goes beyond the poorly constructed precedent.

How should it be addressed if it were actually a problem?

Well, the first bill out of the House actually addressed this topic.  H.R 1 proposed independent redistricting commissions for every state in order to manage congressional redistricting.  When I wrote about that bill, I noted that it can only address federal elections. And the same would go for any provision regarding partisan gerrymandering.  Congress’ Article I power can only extend to federal elections.  States would still be free to engage in partisan gerrymandering in state districts.

It just isn’t the court’s job to get involved here. Moreover, when the court does get involved, it creates imaginary constitutional standards and usurps our understanding of federalism (by exercising state power) and separation of powers (by exercising legislative power). Only state legislatures and congress may govern redistricting. Only state legislatures can govern local elections absent a legitimate constitutional claim.

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