Lansing — Former Michigan Democratic Party chairman and attorney Mark Brewer is preparing to sue state officials over what he alleges is an “unconstitutional partisan gerrymander” that has helped Republicans consolidate power but minimized the voice of Democratic voters he will represent.
The pending lawsuit seeks to build on a recent federal court ruling in Wisconsin, where a three-judge panel ruled in a 2-1 decision that the state’s Republican-led Legislature crafted a plan for political district boundaries that “systematically dilutes the voting strength of Democratic voters statewide.”
The U.S. District Court panel last week ordered Wisconsin to redraw its maps ahead of the 2018 election, but the state is expected to appeal to the U.S. Supreme Court.
“Our clients believe that the current Michigan legislative and congressional redistricting plans are similarly flawed,” Brewer wrote this week in a letter he said he sent to roughly 60 state legislators, staffers and other officials involved in redrawing district boundaries following the 2010 U.S. Census.
The redistricting process takes place every 10 years and, in Michigan, is led by whichever political party holds power in Lansing.
Brewer’s letter warns recipients of the pending litigation and demands they preserve any relevant evidence. It alleges Michigan’s Republican-controlled Legislature “intentionally and effectively” gerrymandered political districts to build or preserve majorities and “diminish the effect” of Democratic voters.
“In this process of redistricting there’s quite a few people involved, so we wanted to put them all on notice that this lawsuit is coming,” Brewer told The Detroit News.
Bob LaBrant, a Republican consultant who has been active in Michigan redistricting efforts for decades, said he was not surprised that Brewer is pursuing a redistricting challenge on the heels of the Wisconsin ruling, but he is skeptical it will succeed.
“This thing still has to get reviewed by the U.S. Supreme Court to have precedential value across the country,” LaBrant said of the Wisconsin case, which was partially informed by a mathematical formula dubbed “the efficiency” gap that he said has a “pretty high bar” to clear to be accepted as proving gerrymandering.
Michigan Republicans unexpectedly held on to its 63-47 majority in the state House during the November election. They even flipped some Democratic seats on state university boards and the State Board of Education — aided by President Donald Trump’s narrow 10,704-vote victory over Democrat Hillary Clinton.
Brewer is an attorney with the Goodman Acker law firm in Southfield and plans to file suit on behalf of “a group of Democratic voters,” he said. The Michigan Democratic Party is not involved in the case, said Brewer, who confirmed he has been in regular communication with Campaign Legal Center, a national group that spearheaded the Wisconsin challenge.
‘Wasted vote’ theory
The Wisconsin case was fueled by development of the “efficiency gap,” a mathematical measurement of the proportion of “wasted votes” cast for candidates of either political party. Wasted votes come in two forms: lost votes for candidates who don’t win and excess votes for candidates who do.
The theory holds that when a party seeks to gerrymander a state, it consolidates opposition votes in “safe” seats while spreading its own votes across more winning districts. By maximizing the wasted votes for the opposition while minimizing its own, a party creates a large efficiency gap.
Researchers Nicholas Stephanopoulos and Eric McGhee first proposed the efficiency gap measurement in a 2014 University of Chicago Law Review article. The paper highlighted Michigan, Wisconsin and 11 other states with unusually large efficiency gaps in 2012 state House elections, the first contest since 2011 redistricting.
Plans in Michigan and other states “would be presumptively invalid under our proposed test,” they wrote.
Federal judges in the Wisconsin case did not base their ruling on the efficiency gap measurement. Instead, they said experts persuaded them the mathematical formula is “corroborative evidence of an aggressive partisan gerrymander that was both intended and likely to persist for the life of the plan.”
The judges concluded that Wisconsin’s plan was “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”
Michigan maps are generally drawn in accordance with traditional criteria, including acceptable population variance and the use of counties as the “basic building blocks” of legislative districts, Labrant said. He suggested the process is complicated by “self-clustering” caused by people who tend to live in communities they are politically compatible with.
“If in fact the U.S. Supreme Court were to accept the idea you’ve got to get rid of wasted votes, then how do you remedy these districts that are drawn in urban cities, particularly Detroit, without forcing those districts to basically cut across county and municipal boundary lines?” LaBrant asked.
Is GOP success proof?
Brewer will attempt to prove an intentional gerrymander in Michigan, which he said is borne out by results in recent elections where Republicans maintained large majorities despite close races at the top of the ticket.
“We have three straight House elections with Obama winning big, a close governor’s race and a close presidential race but virtually no movement in state House numbers,” he said. “That’s because the seats are gerrymandered. Same thing with Congress.”
As The Detroit News reported in November, Michigan Republicans maintained their 16-seat majority in the state House last year but only narrowly beat Democrats in the statewide collective vote tally. With more than 4.5 million ballots cast, GOP candidates combined to receive less than 5,000 more votes than Democrats but won 63 of 110 seats.
Unofficial results at the time showed GOP congressional candidates garnered 79,872 more votes than Democrats – less than a 4-percentage-point margin – but again won control of nine of Michigan’s 14 seats in the U.S. House.
Republicans have defended the 2011 maps, which were approved ahead of time by the U.S. Department of Justice, and argued that their legislative victories are largely the result of stronger candidates.
Democratic candidates who won last year generally did so by larger margins, producing what Brewer and others consider more “wasted” votes. In Michigan’s 7th state House district, for instance, Rep. LaTanya Garrett of Detroit won re-election with nearly 98 percent of the vote. She needed to win 16,852 of the 33,702 ballots cast but won 32,896 in the Democratic stronghold.
Brewer’s pending legal action is the latest in a string of Democratic attempts to reform the state’s redistricting process.
State Reps. Jon Hoadley of Kalamazoo and Jeremy Moss of Southfield last week re-introduced legislation they say would “end gerrymandering” in Michigan by creating a non-partisan commission to draw boundary lines instead of state legislators.
The Democratic package, which proposes a constitutional amendment, is unlikely to advance in the Republican-led Legislature. But outside groups have discussed a possible ballot proposal in recent years.
Former U.S. Rep. Mark Schauer of Battle Creek, who ran for Michigan governor in 2014, is also advising a new national group headed by former U.S. Attorney General Eric Holder that is working to increase Democratic influence in the next round of redistricting following the 2020 census.