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Redrawing districts: the shape of things for 2022

By Lisa Brody

A large cross-section of Michigan voters in 2018, 62 percent, from the tip of the northern Upper Peninsula to the Ohio border, approved a ballot initiative prepared in advance of the 2020 decennial census, to move control of redrawing the boundaries of the districts for U.S. Congress, state Senate and state House from the state legislature to an independent commission made up of ordinary citizens who would listen to people of the state as they went through the process, and then draw maps to reflect what they learned.

This is a process which occurs every 10 years, and affects both citizens and politicians for the subsequent decade, determining who represents voters in Washington D.C. and Lansing. However, in the past, it was done by whichever political party was in power, behind closed doors, which for the last several decades has been the Republican Party, including in 2011, when Republicans held the governor's office, the state Senate and state House. To many, that led to seriously imbalanced districts and ones which were drawn to protect those who were in office, or to maintain Republican control. This in a state where voters have been increasingly casting actual votes for Democrats, flipping some long-held Republican congressional seats and voting in a Democratic slate for governor, secretary of state and attorney general in 2018 – but where Republicans have kept a stronghold on the majorities of both the Senate and the House thanks to gerrymandering.

The goal of the ballot initiative was to eradicate – or at least lessen – partisan gerrymandering, which is the manipulation of political boundaries of an electoral constituency in order to favor one political party over another, providing a long-term unfair advantage to one party over another before even one vote is cast. The other goal was to do the work in public with complete transparency, rather than behind locked doors, by a commission comprising four Republicans, four Democrats, and five people with no political affiliations – people who classified themselves as Independents. For the most part, the transparency goal was reached, but not completely.

In 2020, before the U.S. Census was even complete, more than 6,200 Michiganders applied to be a part of the Michigan Independent Citizens Redistricting Commission, with 200 becoming semi-finalists for the 13 final positions by the end of June 2020. By fall of 2020, the new commission had engaged in a learning and listening tour throughout the state, and then embarked on learning communities of interest, the federal Voting Rights Act, partisan fairness and other strict guidelines of the new constitutional amendment which led to its creation, and which would culminate in newly drawn district maps, which were released on Friday, November 5, for Congress, state Senate and House. The public now has 45 days to comment and critique them before the commission reconvenes and votes to approve a new set of maps on December 30, 2021.

If they are approved and finalized, they will be the official districts for the next decade, until the next decennial census is complete in 2030.

Michigan is not the first state to rely on ordinary citizens to undertake redistricting, and it is a trend gaining so much traction, it is included as an important provision in the federal Voting Rights Act, known as the For the People Act, which has not passed the U.S. Senate, although it did pass the House of Representatives. Currently, 11 states have some kind of an independent redistricting commission – in addition to Michigan, California, Arizona, Washington, Idaho, Montana, Colorado, Iowa, Virginia, Hawaii and New Jersey all have independent panels tasked with redistricting operating outside of their state legislature’s purview.

Arizona was the first state to create an independent redistricting commission, in 2000, following voters’ approval of Proposition 106 “to create a bipartisan commission independent of the state legislature that would be tasked with redrawing congressional and legislative lines following the decennial census.” The commission is made up of 15 members – five Democrats, five Republicans, and five Independents. Their state Constitution also specifies that members cannot have held leadership as an officer in any political party, or as a lobbyist, for three years prior to serving.

The California Citizens Redistricting Commission was established following the 2008 passage of California Proposition 11, which became responsible for determining boundaries for state Senate and state Assembly, and Board of Equalization, and in 2010, after passage of Proposition 20, it added responsibility for the maps for U.S. Congress. It consists of 14 members: five Democrats, five Republicans, and four from either major party. The commission has been criticized by some politicians because “many safe seats in the legislature could become competitive,” according to Evan Halper and Richard Simon in the LA Times.

Which is exactly the point.

“This is so much better,” said state Sen. Rosemary Bayer (D-Bloomfield Township, Beverly Hills, Franklin, Bingham Farms, Pontiac, Auburn Hills, Lake Orion, Clarkston, Independence Township). “So many Democrats flipped seats in 2018, and there was no way for the (state) Senate and House to flip unless the lines were redrawn. When they’re gerrymandered, the politicians don’t even have to work anymore to represent the voters.”

Nick Stephanopoulos, who specializes in redistricting and election law at Harvard Law School, agrees.

“When politicians draw maps, it serves their interests and not their citizens,” he said. “Michigan is an example. It’s a slightly blue state that has a red stranglehold.

“Michigan is close to a worse-case scenario,” stated Stephanopoulos. “There is a distinct mismatch between a Democratic electorate and a Republican legislature, between a public that keeps electing Democrats and a legislature that is gerrymandered Republican.”

“Certainly a lot of people believe independent commissions are the way to go, so they’re keeping an eye on Michigan this year, to see if a redistricting commission can work,” said Michael Li, redistricting expert, Brennan Center for Justice at New York University Law School. “Michigan is a key focus because their districts were really gerrymandered.”

California’s original electoral district maps, in 2011, were overwhelmingly approved by the bipartisan commission, yet received a series of legal challenges. However, the California Supreme Court ruled unanimously three separate times in favor of the commission’s maps, finding them in compliance with both the U.S. Constitution and the California Constitution, and they took effect in time for the 2012 California primary. According to the Public Policy Institute of California, “California now has some of the most competitive districts in the nation, creating opportunities for new elected officials.”

In 2015, the two independent commissions were buttressed when the U.S. Supreme Court upheld Arizona’s 2010 redistricting in Harris v. Arizona Independent Redistricting Commission, in which the court held that the one-person, one-vote principle under the Equal Protection Clause of the Fourteenth Amendment allows a state’s redistricting commission slight variances in drawing legislative districts provided the variance does not exceed 10 percent.

“We looked at California and Arizona’s commissions, we got to be a friend of the commissioners in those states, and we looked at best practices,” said Nancy Wang, executive director, Voters Not Politicians, the grassroots group behind the successful 2018 ballot initiative to amend Michigan’s Constitution. “You can recognize some of the characteristics of the California act that we thought would apply to Michigan, but there is a huge difference in how the Michigan commissioners apply and are selected. It’s totally random here. There was no single body here or officials that were trusted to be insulated to be impartial or not political. In California, there’s a solicitor general. We have one too, but it’s not impartial.

“We had to craft a unique proposal,” Wang said, noting that certain aspects, such as communities of interest are in Arizona, California and other states, and they felt having an odd number of commissioners and other criteria was important.

Wang, like many other political figures, political scientists, political consultants – and lots of regular folks – have been avidly watching the machinations of the Michigan Independent Citizens Redistricting Commission as they have gone through the process of listening, learning, drawing maps, a series of required public hearings, and then tweaking the maps before their release on November 5. Without a doubt, there have been growing pains and some difficulties. But most do not believe it has been a futile exercise and are certain that by the time 2022 rolls around, the major effort will prove to be not only worthwhile, but a great improvement over the current maps.

“It’s been crazy in many predictable ways,” noted David Dulio, director of Oakland University Center for Civic Engagement and a political science professor. “Those who are paying attention are realizing that drawing maps are difficult. Any kind of line drawing is ripe for criticism.”

“We should celebrate some things, like the commission has not been particularly partisan. There have been conflicts, but not on partisan grounds. The hearings have been public. The drawing process has been public, and the public has been able to see the changes. The maps have all had some improvements from previous maps and will score significantly better on partisan criteria than previous maps,” said Dr. Matt Grossman, director, Institute for Public Policy and Social Research, which does redistricting analysis reports, and professor of political science, Michigan State University.

“The not so good?” Grossman asked. “There’s been a real struggle with the Voting Rights Act,” noting issues with “unpacking,” or not concentrating all African American voters into districts contained in the city of Detroit, but working to maintain a majority while spreading districts into suburban areas. “The commission has been following their attorney and consultant’s perspective, which is a fairly idiosyncratic interpretation of the Voting Rights Act and African American interests. It’s based on data that is incomplete. The analysis is, would an African American preferred candidate win in a district. The harder analysis is could the African American preferred candidate win the Democratic primary? Many of the districts are drawn from Detroit out to the suburbs.”

Oakland University political science professor John Klemanski said, “I think there’s been a lot of growing pains. It’s the first time it’s been done differently from the old way. It’s been transparent. They spent a lot of time looking at the implications of drawing the lines and the implications of the Voting Rights Act. The software tells you the percentage of African Americans in a district and it will red flag you if there is too much or too low. They spent a lot of time just on that issue – and rightly so, it’s the first issue they have to watch for, that will impact minority voters.

“When you take something public that was private, and you see all the warts – and there were warts – they’re (commission members) all private citizens, they’re not savvy about all of their decisions, and they have invited people all along to provide feedback, to draw maps – it’s like hyper-pluralism,” Klemanski noted. “As a teacher of Michigan politics, I say it’s easy to criticize. In California, a lot of the reaction to the first time was disappointment. There will always be someone disappointed, but I don’t think the average person will be terribly disappointed. The commission has tried hard to make each district balanced in a partisan way – when you do that, you can end up with a district that looks squiggly and gerrymandered, and a casual observer of the maps may think they’re gerrymandered. The intent is to create some semblance of partisan balance.”

“The promise of a commission is a more fair map that does not gerrymander. The notable thing about the Michigan commission is that not only do they have to not gerrymander, but an affirmative, fair partisan requirement is for good and not for evil,” said Harvard Law’s Stephanopoulos. He said the commission has done “a pretty good job in following Michigan and federal law. While not perfect, they are a huge improvement over the previous incarnation. It’s not just the 2010 maps that were skewed – so were the 2000 maps, all the way back to at least the 1980s.”

“It’s not uncommon to have pains when starting a redistricting commission, especially when coming from gerrymandered maps.” noted the Brennan Center’s Li. “In California, they were widely panned, and then the commission did what they had to do – they came up with really good maps.

“It’s very hard for people to say what they want in the abstract,” Li said. “It’s like redesigning your house. Until you have the designer come in and show you what didn’t work or what new options there are, you don’t know what you could do or what you want to live with. The redistricting commission, they’re doing it out in the open – before, you didn’t know what happened. It was a secret closed door process, where one party was shut out. Now, everyone has their say – as they should – these maps will be used for 10 years. But there are important legal issues, and there is some dispute as to what they have to include. If they get it wrong, there are remedies. There could be lawsuits. However, when a redistricting commission draws maps, the lawsuits get dismissed much quicker.

“The thing about commissions is, they don’t necessarily get the maps exactly right – but they don’t do wholesale discrimination,” he continued. “They’re in the ballpark, and their intent is there. So the fixes are more tweaking, generally.”

The Michigan Independent Citizens Redistricting Commission had strict constitutional responsibilities set forth by both federal law and new Michigan constitutional requirements set forth by the approved ballot proposal. Before drawing any lines, the commission was required to hold at least 10 public hearings. Per the Michigan Constitution, the purposes of the hearings were to: inform the public about the redistricting process; share the purpose and responsibilities of the commission; and solicit information from the public about potential redistricting plans for the state’s Congress, House and Senate districts.

The Michigan Constitution outlines the specific criteria and procedures the commission must use when proposing and adopting a redistricting plan, listed in priority. The first is that “districts must be of equal population as mandated by the United States Constitution and shall comply with the Voting Rights Act and other federal laws.”

Second, districts shall be “geographically contiguous.”

Third is communities of interest. “Districts shall reflect the state’s diverse population and communities of interest. Communities of interest may include, but shall not be limited to, populations that share cultural or historical characteristics or economic interests. Communities of interests do not include relationships with political parties, incumbents or political candidates.”

MSU’s Grossman felt there was a lot of problems with what the public submitted with communities of interest, and how the commission viewed them.

“The public used communities of interest as a launch to design their own districts,” he said. “The commission used them as who people want – and don’t want – in their districts. It’s an invitation for homogenous districts. There has been partisan disputes also, because Democrats are more concentrated in the state. You can’t draw a Republican district that is as Republican as the Democratic districts. It’s easier to pack Democratic districts than Republican districts because Republicans are more spread out.”

Fourth, “Districts shall not provide a disproportionate advantage to any political party,” followed by, “Districts shall not favor or disfavor an incumbent elected official or a candidate.”

“We learned that if you put partisan fairness above communities of interest, then communities of interest would be disregarded,” said Wang of Voters Not Politicians. “We keep making the point to the commission that you can have all the aspects included – you can respect communities of interest and strive to not deprive partisan fairness at the same time. Even if you don’t get everything you want, then we hope you appreciate what it took to get there. You just have to respect the process.”

Lower on the list than on previous redistricting endeavors, “Districts shall reflect consideration of county, city and township boundaries,” followed by “districts shall be reasonably compact.”

A series of public hearings was required following the development of plans for each type of district, where comments were heard. “The vast majority of comments are complaints,” noted Oakland University’s Dulio, who pointed out that a lot of the districts “are funny looking – which if the legislature had drawn these they would definitely had been criticized for it. The public comments show the public thinks these maps are gerrymandered.

“From the ‘90s onward, the states were encouraged to do racial gerrymandering, to create those majority/minority districts,” he said. Now we’re seeing the commission being criticized for ‘unpacking’ the districts, when that is what some called for. When you ‘unpack,’ you are ‘cracking,’ to some degree.”

“We would call it cracked if it is 49 percent Black, and many (on the commission) are saying they’re complying with the Voting Rights Act if its 39 percent Black they’ll say it’s 14 percent Hispanic,” said Bob Chunn, president and co-founder, RelA2ve, which does software solutions for redistricting in Michigan, and NextVote, which is working with nonprofits in the state on communities of interest. “We simplify all the information and put it in front of people and point out the problems… I would have started with the highest level of criteria, getting the population in balance for the districts.”

He said many communities of interest “did not get their interests out before the commission,” and therefore were separated in districts.

The two major political parties view the process through different lenses – but are both disappointed with the process, although for different reasons. Lavora Barnes, chairwoman, Michigan Democratic Party, feels “they miss the mark of what the maps were required to reflect. The commission started without it taking partisan fairness or the Voting Rights Act into account, and then started looking at it – after the first maps were drawn. Now they’re trying to tweak it and get them right.”

Subsequent maps did take those concerns into account.

“Many areas the commission needs to work on and need to reflect are the changes that have happened in the last 10 years,” Barnes noted. “You have to throw out the old districts, and you can’t go by what you thought you knew, but what you actually do know about them.”