Redistricting: Putting power in citizens’ hands

November 25, 2019

 
In 2018, Michigan voters, fed up with congressional and state legislative districts that seemed designed to favor certain political parties and not necessarily reflect their interests, did something that people always say they want to do – they took the matter into their own hands and created a system designed to end partisan district gerrymandering.

It was accomplished through the efforts of a grassroots group called Voters Not Politicians, which launched a citizen-led ballot initiative for redistricting reform, known as Proposal 2 on the ballot, which passed with 61 percent of the vote. The positive election results created a 13-member independent redistricting commission that is designed to be made up of regular citizens of Michigan – four of which are Republican, four Democrat, and the rest political independents – in order to design district maps that are fair, equal and balanced. It recently launched its application process, overseen by the Michigan Secretary of State office, getting off to a huge initial response.

Michigan is not the first, or only, state with an independent redistricting commission. Currently, there are at least 25 U.S. states that have some form of non-partisan or bipartisan redistricting commissions, according to the National Conference of State Legislatures (NCSL). Redistricting commissions are a body, other than state legislative panels, that are established to draw electoral district maps. Typically, the intent is to avoid gerrymandering, or the appearance of gerrymandering, by specifying a nonpartisan or bipartisan body to comprise the commission drawing district boundaries. The NCSL said that traditionally, state legislatures had been responsible for redistricting for state legislative and congressional districts, done every 10 years after the decennial census. Per the U.S. Constitution, since 1790 a decennial census has been conducted every 10 years in order to determine how elected representatives and taxes should be apportioned. The last census was held in 2010; the next is mandated in the Constitution to take place in 2020.

Traditionally, whichever party is in control of its state legislature during the decennial census has been in charge of redistricting for the decade going forward.

Since landmark U.S. Supreme Court decisions in the 1960s which established the one-person, one-vote principle, the NCSL said that a number of states have shifted their redistricting responsibilities of state legislative lines from their legislature to a board or commission. “Reformers often mistakenly assume the commissions will be less partisan than legislatures when conducting redistricting but that depends largely on the design of the board or commission,” said NCSL. In Michigan, members of the majority in the state legislature have done the job of redistricting – until this new Independent Citizens Redistricting Commission, which will perform the task after the next census.

Eric McGhee, senior fellow at Public Policy Institute of California, said that there has been a big movement for redistricting commissions since the 1980s, and in California, there once was one in the 1980s. Currently, according to NCSL, there are eight states with a commission which has a primary responsibility for drawing a plan for congressional districts; six states have an advisory commission that may assist the legislature with drawing district lines; and two states have a backup commission that makes a decision if the legislature is unable to agree. In several of the states, the legislature still must approve the plans.

The difference in Michigan today, as it is in California and Arizona, and now also in Idaho, Montana, Alaska, Colorado and Washington, is the redistricting commissions are completely independent, comprised of citizens and not connected to any political entity.

This is not Michigan's first encounter with a redistricting commission – Michigan's Constitution of 1963 introduced a bipartisan Commission on Legislative Apportionment designed to draw the state's House and Senate districts, with four Republicans and four Democrats on the commission, explained Michigan House Legislative Analyst Jenny McInerney. They would vote on adoption, and if a majority of the commission members couldn't agree, the Michigan Supreme Court was directed to choose a redistricting plan before the next election.

The Michigan Constitution of 1963 included the use of both population and geography in apportioning legislative seats – until June 1964, when the U.S. Supreme Court issued a decision stating that all state legislative bodies had to apportion seats based on population. It was determined to be a violation of the Fourteenth Amendment's Equal Protection Clause.

However, the redistricting commission continued without adhering to the Supreme Court edict, ending up deadlocked in both 1964 and 1972, with the Michigan Supreme Court approving the final plans. In 1982, after another deadlock, the Michigan Supreme Court considered the procedure dictated in the state Constitution, and “disbanded the apportionment commission and authorized the legislature to once again take control of the apportionment,” McInerney said.

It was thrown out, Robert Sedler, constitutional law expert and Wayne State University law professor, said, “based on land apportionment. It was all part of one process, so the whole thing went down.”

“In 1982, the substantive principles that the commission was obligated to follow violated clearly established Supreme Court principles requiring that all districts have roughly equal numbers of people. Because the essential policies the commission was obligated to follow were unconstitutional, the Michigan Supreme Court held that the whole scheme could not be constitutionally implemented,” said Richard Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law.

The term gerrymandering first came to be after Elbridge Gerry, who, as governor of Massachusetts in 1812, signed a bill that created a hyper-partisan district in the Boston area that was compared to the shape of a salamander – hence, “gerrymander.”

Gerrymandering has come to be known as the practice of establishing a political advantage for a political party by manipulating district boundaries, often into strange contortions. It can also be used to protect incumbents. In 2014, historian Wayne Dawkins pinpointed the action as “politicians picking their voters instead of voters picking their politicians.”

“It provides cover to only the party in power,” said Yurij Rudensky, redistricting counsel, the Brennan Center for Justice.

“Fast forward to 2000, when Republicans controlled both (Michigan) houses and the governorship. They drew up districts favoring Republicans – same as in 2010,” Sedler said. “Republican apportionment went into effect in 2001 and 2010, and those 2010 lines were drawn to guarantee Republicans nine seats and Democrats five seats in Congress.”

Dawkins viewed the practice as racial voter suppression. “Gerrymandering is just another way to keep black people from voting,” he wrote about Virginia, after three federal judges ordered the Virginia General Assembly to redraw the boundaries in 2015.

He's not far off. The term gerrymandering has many negative implications, with two principal tactics used in gerrymandering – “cracking” and “packing” – to create districts to ensure a majority of favoring one party, irrespective of voter and demographic changes. “Cracking” refers to the dilution of voting power of the opposing party's supporters across many districts, and “packing” means concentrating the opposing party's voting power in one, or a few, districts to reduce their voting power in other districts.

 For example, Michigan's 11th Congressional District, which meanders in a unique and unusual configuration from Plymouth to Livonia to Novi to Commerce Township to Waterford east to Birmingham, Bloomfield Hills, Troy and north to Auburn Hills and a portion of Rochester Hills, designed in 2011 to be comfortably and safely Republican for then-Congressman Thaddeus McCotter of Livonia. As we know, in 2018 Democrat Haley Stevens flipped the district despite gerrymandering. Carved out of the district when boundaries were last drawn was more-Democrat leaning Farmington Hills and West Bloomfield, both stuck into the 14th District, which includes northwest Detroit and Harper Woods, and is currently represented by Rep. Brenda Lawrence (D). Similarly, Bloomfield Township was carved out of the 11th District and put into the safely Democratic 9th District, in 2011, protected for then-Congressman Sander Levin, now represented by his son Rep. Andy Levin (D-Bloomfield Township).

“Gerrymandering is designed to mute the voices of some parts of society, to lessen the vote compared to other voters, by putting minorities into a district, or if they try to create a district with a majority of voters similar to your party but they sprinkle in a few voters from the other party, their voices will seldom be heard,” explained Eric Lupher, president, Citizens Research Council in Michigan. “The bottom line is it works to disenfranchise voters of the other party. For voters of the majority party, here in Michigan, we've been dealing with the Republican Party, but in other states it's been the Democrats. They've been able to draw the lines to keep it this way until this last election – especially to keep Congress Republican – even though they haven't had the majority of votes cast.”

Lupher explained the goal behind their control of the districts.

“If they control the ballot box, they control the agenda, then they control the budget,” he said.

Thomas Mann, a senior fellow of governance studies at the Brookings Institute, said that “Redistricting is a deeply political process, with incumbents actively seeking to minimize the risk to themselves or to gain additional seats for their party. Gerrymandering of state legislative districts can effectively guarantee an incumbent's victory by 'shoring up' a district with higher levels of partisan support.” He noted that this can be highly problematic from a governance perspective because forming districts to guarantee high levels of partisanship often leads to higher levels of partisanship in legislative bodies, which can then create and perpetuate partisan gridlock.

“This demonstrates that gerrymandering can have a deleterious effect on the principle of democratic accountability. With uncompetitive seats reducing the fear that incumbent politicians may lose office, they have less incentive to represent the interests of their constituents,” Mann noted. “Incumbent politicians may look out more for their party's interests than for those of their constituents.”

“It boils down, at the heart of it, to a real fundamental conflict of interest,” Justin Levitt, associate dean for research, professor of law, Loyola School of Law, pointed out. “They may care about issues, but like anyone, they care about keeping their job, and the pressure to keep their job. There's a very natural conflict of interest between the public's interest and their private and partisan interest.”

“While gamesmanship in politics is nothing new, this extreme gerrymandering is,” Rudensky from Brennan Center, said. “The (redistricting) maps in North Carolina, Michigan, Wisconsin, Maryland, are fundamentally more extreme than ever before. It's been primarily over the last decade of Republican maps, because Republicans have had more opportunity because they had such good elections in 2010 as a reaction to (former President) Obama, so the party used that good election year to lock in their majority.”

Rudensky said the ability to draw maps to define and establish extreme gerrymandering occurred partially through the use of sophisticated tools, but “part of it is there has been political polarization – much more than in the '80s, '90s and decades past. Political operatives can really predict how people will vote, and determine if it will be a good year for Republicans or Democrats. That kind of predictability, combined with sophisticated algorithms, allow you to draw maps that allow representatives to stay in power, even if people are displeased with their decisions.

“That's fundamentally different from years before.”

Another issue the Brennan Center has noted is the grip the party in power – the Republicans – have maintained.

“We've never before seen gerrymandering hold over an entire decade,” Rudensky said. “Because with people, there are natural shifts in demographics over 10 years – with 2016 and 2018 – in those elections we've seen pretty strong shifts in election results.”

The long-standing complaints about gerrymandering finally galvanized in 2018 a Michigan grassroots group which took petitions to neighborhood associations, libraries, coffee shops, family gatherings, book clubs – everywhere people gathered together, all over the state, and gained over 425,000 signatures to put a citizen-led constitutional amendment on the ballot to create a commission charged with redistricting following each decennial census. The amendment would replace the previous method of determining the boundaries of congressional, state Senate, and state House districts – namely, governed by the legislature – with a process led by an Independent Citizens Redistricting Commission.

“I was surprised how much of a grassroots effort” the rise and impact of Voters Not Politicians “really was,” Citizens Research Council's Lupher said. “We talk about grassroots efforts, but often behind the curtain is big dollars. But Voters Not Politicians really was a grassroots effort because people were just fed up with the system. They felt their voices were not being heard. Whether because of the road gone down by California or Arizona, or the political scientists from some of Michigan's universities who had done research showing how things could be different,” voters were energized and motivated.”

Rudensky concurred. “There's been a civic awakening in the last several years, not just about kitchen table policies, like health care and schools, which are still important, but there's been a mass awakening across the entire political spectrum, with polling showing that reforms say redistricting may show it could hurt the party you favor – they still favor reform, even if they're told it could hurt their party and the number of seats they favor because they want to live in a fair system, and people just feel alienated, regardless of their party preference. They don't trust the government or that their representative is acceptable to them.

“Ultimately, that's really important,” he emphasized. “Our system depends on people's trust. Once it breaks down, then it's hard for whatever happens to have legitimacy. Independent redistricting commissions help restore legitimacy.”

Arizona was the first state to establish an independent redistricting commission, by voters in 2000, and has now gone through two redistricting cycles. California was the second state to establish an independent redistricting commission in 2010. Arizona's commission was challenged by the Arizona legislature, which contended that the elections clause of the U.S. Constitution provided for the legislature to draw district maps. However, in 2015, the U.S. Supreme Court rejected their argument, holding that the term “legislature” could be read broadly to mean "the power that makes laws," not just the two representative houses. Because the Arizona Constitution granted voters “the powers that makes the laws,” voters were not prohibited from adopting laws governing redistricting.

“These kinds of commissions take this kind of partisan interest back from politicians,” Loyola School of Law's Levitt said. “So that instead of politicians choosing their voters, voters are choosing their politicians. It's not about a particular party seizing power – but about the citizens seizing power back from the politicians, which I happen to think is a good thing.”

Levitt said Michigan “very smartly and intelligently thought through” creating the Independent Citizens Redistricting Commission, which he said passed because “it's not hard to get people agitated when politicians are abusing the power we give them. Incumbents talk about 'their' district. It's not 'their' district – it's our district. It's easy for them to forget and feel it's an entitlement they are granted.

“It's not partisan frustration, and the ballot issue showed that.”

“We started out with a goal, just to find a solution to some of the most gerrymandered maps in the country,” said Nancy Wang, executive director of Voters Not Politicians. “We also were coming off the 2016 election and how hyper-partisan and nasty it was.”

Now that Michigan is at the point of implementation of the change, Wang and others who sought to foster change recognize the importance of protecting their dream of redistricting for and by the people.

“We knew we would be sued. And there was a bill during lame duck (the period after last year's election in November). It would have restricted the kinds of experts that could have been hired (by the new commission). It was meant to be very restrictive. We were following that from the beginning, and spoke out about that, and got volunteers,” Wang said. “It passed the state House, but died in committee in the Senate. It was another example of the power of people taking action and saying 'we're not going to let you undermine us and what we just passed.'

“A big part of our strategies is being proactive,” she explained. “We reach out and drum up awareness and enthusiasm for our commission. Volunteers are being involved in presentations and educated about the new commission, and sign ups. Proposal 2 passed, but what does that mean? How can the public really be involved in the process?”

Officially, the public can now be involved in the process of redistricting Michigan's congressional and legislative maps. As of October 24, 2019, the state of Michigan began taking applications for the Independent Citizens Redistricting Commission, which will be  fully responsible for redrawing the district lines for state House, Senate and U.S. Congress.

“We're really excited to have launched the application process, and we're receiving a great response,” said Michigan Secretary of State Jocelyn Benson. “In the first hour when we launched, 100 people applied. In the first 24 hours, 1,000 people applied. We've had over 3,000 people apply so far, and we have eight months to go. We intentionally started early to get the word out across the state.

“This is a really special moment in Michigan history,” Benson continued. “We want to ensure our elections are fair and really representative of all of our constituencies and communities in this great state. This allows all citizens the opportunity to participate in the process. This powerful change has the opportunity to define our democracy for years to come.”

Any Michigan registered voter can apply, have their application notarized, and then they're in the pool of applicants. The deadline is June 1, 2020, when a national accounting firm will do a random selection of 200 semi-finalists. Those names will be posted, Benson said, and the quadrant leaders in the legislature – the Speaker of the House, House Minority Leader, Senate Majority Leader and Minority Leader – will each be able to strike up to five names each, for a total of 20 names. The remaining 180 semi-finalists will then go into a random selection, and from there, the final 13 will be drawn.

“The amendment is very clear about this – there's a random selection process to 200 semi-finalists,” explained Jamie Lyons-Eddy, Voters Not Politicians Director of Campaigns and Programs. “It's required to be weighted to the demographic and geographic distribution of Michigan. After the five strikes of the legislative leaders, then it's completely random. The pool will be balanced – but it will be completely random. It's statistically designed to reflect Michigan's diversity. It's already part of Michigan's Constitution and will be followed to the letter of the law by the Secretary of State.”

Once the commission is seated, designed to be no later than October 15, 2020, Benson said they will be required to hold at least 15 town hall meetings across the state – although they can have as many as they feel they want or need – and have a completely open process in order to have the perspective of all Michigan citizens as they draw the maps. The goal is to have final maps completed and adopted by November 1, 2021, and enacted into law by December 31, 2021, which will take effect prior to the 2022 elections.

Members of the commission will each be paid about $40,000 for their efforts, and can expect anywhere between 10 and 40 hours a week of time during the process.

“When you do commission-based redistricting, it's really about putting people first,” said the Brennan Center's Rudensky. “They're supposed to go around the state and get input, holding public hearings, and have people inform the process, and submit plans. We saw the process play out in California. It's a really remarkable thing.

“In Michigan, it's really elevated,” he said. “You'll see really good results. What the commissioners are for is to collect the testimony of Michiganders and synthesize it and reflect it back. You still need people who have skills – if you've served on a PTA, taken any kind of leadership, you're prepared to serve.”

As Wang and her colleagues anticipated, there has been a lawsuit. A national Republican group led by former Wisconsin Gov. Scott Walker (R), Michigan Freedom Fund Executive Tony Daunt, state Rep. Tom Barrett (R-Potterville), and 13 others filed suit in federal court in Grand Rapids, alleging the rules of the commission is exclusionary and violates First Amendment rights of free speech and Fourteenth Amendment rights of equal protection.

Their reason? The Independent Citizens Redistricting Commission is open to registered voters in Michigan – except anyone who in the last six years was a partisan candidate, elected official, political appointee, lobbyist, campaign consultant and officer or member of the governing body of a political party, as well as a parent, child or spouse of any of those individuals.

In its motion, the lawsuit asked a federal judge to shut down the commission. As of press time, the court had not yet ruled on the lawsuit. Repeated calls and emails by Downtown newsmagazine to Daunt and Rep. Barrett were not returned.

“At Voters Not Politicians we feel that these lawsuits are without merit, and those who gerrymandered Michigan in the first place don't want to give up power, and we expect them to be resolved quickly, because the Secretary of State needs to get on with the commission,” Lyons-Eddy said.

NYU Law School's Professor Pildes does not believe the new redistricting commission will face the same legal challenges as Michigan's earlier commissions. Wayne State University Professor Sedler agrees.

“The challenges are likely to be rejected,” Sedler said. “The grounds they are asserting are pretty unsubstantial. Nothing in the language is exclusionary. It's not like the (constitutional) violations with other commissions. I would assume after the 2020 census the redistricting commission will do the apportionment.”

“Today the situation is quite different. Nothing in clearly established Supreme Court doctrine makes the rules about who can serve on the commission obviously unconstitutional,” Pildes said. “Moreover, Michigan can argue that those rules are justified by the policy of making the commission as non-partisan as possible. But even if the courts were to hold that these rules excluding certain people from serving are unconstitutional, it does not seem likely the courts would then hold the entire commission unconstitutional. The easy fix for any such ruling would simply be to permit these additional figures to be eligible to serve.”

“You're trying to eliminate the drawings of lines to eliminate the advantage of one party in elections,” Wang said. “To accomplish that, you write into the Constitution, which we did, to prohibit the commission having an unfair advantage to one party or candidate over another by setting up an ethical system. You must protect that with fair procedures that must be followed. The system, the way you do it, is through utter transparency. All the maps, the data, consultants, everything – is open to the public. There are no secrets.

“Also, fundamental, central to its integrity is to kick out those actors with the greatest incentives to cheat. Those people are the ones who benefit personally when maps are drawn one way or another. Whether professionally – because they stay in office, or financially, because they rely on that person who would benefit by the ways lines are drawn, you take the people who have a direct conflict of interest out of the equation. Those are politicians, paid lobbyists, high ranking party officials, also their family members,” she noted. “Those are three things to prevent partisan gerrymandering.”

Political consultant Dennis Darnoi of Densar Consulting believes there are a lot of holes in the language. “If I were to say I am non-partisan, how is someone going to prove me wrong? The language says it must mirror the demographics of the state – so the state is 79 percent white, 14 percent black and the rest is split up. So then 10 of the 13 seats should be for whites, two should be blacks and one should be other – Hispanic or Asian,” he contended. “There's a lot to take into consideration, and if you haven't done this before and aren't aware, I can tell you, having done it.”

Levitt, of Loyola School of Law in Los Angeles, said there are those sorts of restrictions in place in all sorts of places. “There is no right to serve on a commission like this,” he said. In order to win, he said, it would need to be proven that other exclusions are acceptable, such as a federal employee not being permitted to contribute to a campaign, “while Michigan's aren't. It's extremely unlikely.”

Citizen Research Council's Lupher disagrees. “I think it's a legitimate argument. You are nullifying the free speech of people. Because we deny free speech of people when we have term limits, saying they can't run again – is this any different?”

Lupher said that as for the whole commission being thrown out because of that, “there's severability. It might change the dynamic of the commission. Even if these different groups are allowed to participate on the commission, we still have to require the public's input, so I don't think the end result will be different than if these people are excluded.”

While Michigan's independent redistricting commission is modeled on California's, with similar restrictions, if those filing the lawsuit  prevail, Levitt does not see cause for concern in California, although McGhee, of the Public Policy Institute of California, does in terms of possibly setting precedence for other states.

As for concerns of how ordinary citizens will be able to learn and navigate the Voting Rights Act, court decisions and other necessary voting standards, Michigan officials are already addressing the issue.

“The commission will select and hire experts to train them on whatever topics they deem relevant to their work,” Benson said.

“They need to rely on staff. The most important decision a commission makes is who they hire as staff, as well as legal counsel, because of the Voting Rights Act, and navigating those waters, and how to counsel how equal those districts need to be, as well as other legal issues,” McGhee said. “Getting this help, and making sure it's an honest broker and that the map is a vision of the commission – and not the staffers – it's always a risk.”

The standards that must be taken into account by the Independent Citizens Redistricting Commission as they draw new maps are different than redistricting standards for the last several decades, which followed what are called the “Apol Standards,” created by former Michigan Director of Elections Bernard Apol. Apol established a list of standards to follow, chiefly to preserve county lines without violating equal population; compact, contiguous districts; 16.4 percent divergence between districts; respect political boundaries; and have the fewest cities and township lines broken.  

“In the creation of district maps, the Apol Standards prioritize our historical political boundaries, and because they did that, they prevented communities from fairly being divided,” said Wang. “What the new Constitutional amendment does is reprioritizes what the committee has to follow, and that is not always the Apol Standards. It's actually totally different. It puts communities at the center of the district, over county and township or city lines.”

That means communities of interest, which may spread beyond city, township and/or county lines. According to “A Commissioner's Guide to Redistricting in Michigan” by Woodrow Wilson School of Public and International Affairs, Princeton University, “communities of interest could be legislative interests, but also “social, historic, cultural, racial, ethnic, media, transportation, or ethnic factors...The commissions role in identifying communities of interest is subject but must be based on reason and evidence...In recognizing these communities, the commission can give a voice to local groups who might otherwise have little power.”

“Apol tried to keep communities together, and that was considered important. But that lends itself to funny looking maps when you do it,” Lupher noted. “The amendment doesn't do away with it, but says it's not the most important thing. Apol Standards often had to do funny gyrations to keep areas together.”

Federal requirements of the Voting Rights Act and districts having equal population must still be maintained for all maps drawn, including by the independent commission.

Congressional districts must be close to equal in population size. For state legislatures, the rule of thumb is the largest district can be no more than 10 percent larger than the smallest district. Consistent with this, current Michigan law encourages state legislative districts to be within five percent of the average-sized district.

The Voting Rights Act looks to evaluate if there is at least a majority of minority population voters in a district, or at least have the opportunity to elect a candidate of their preferred choice. According to Public Mapping Project, the ideal district has just the right percentage of minorities to elect a minority candidate of choice. “The percentage of minorities cannot be too low, lest cracking occurs, and cannot be too high, lest packing occurs.”

The next criteria for the redistricting commission is district contiguity, meaning that all parts of a district must be connected. According to the Princeton study, “Contiguity is understood as a traditional redistricting principle by the U.S. Supreme Court, and this idea aligns with most people's common-sense notion of what a legislative district should look like.”

The next criterion the commission will be directed to look at is partisan fairness, so that the outcome of the process, which is the new district maps, will not provide an unequal benefit to one party over another.

Under the new standards, incumbency and political boundaries can then be considered, but before compactness. “Compactness may have to be sacrificed to comply with other criteria, particularly in densely populated areas,” the Princeton study said. “Compact shares are not necessarily a sign of fairness...Ensuring that districts reflect communities of interest and do not provide disproportionate advantages to any political party may mean that some districts are not as compact as they otherwise could be.”

Michigan pollster Bernie Porn of EPIC MRA, said he would have the commission “take a history of the last two decades and create a database and use it. Whether for Republicans or Democrats, the computer system would be able to evaluate plans and the number of most competitive seats. There's about a half-dozen plans, at least, that make it where either party could win.

“The goal is, in a normal election, either party could win a majority of the state House, Senate or Congress. I think the commission will end up with that goal when all is said and done. They will not shirk their duty to pass a map that is drawn for either party to win.”

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