Appeals panel hears arguments again on constitutionality of redistricting commission

Beth LeBlanc
The Detroit News

Republicans renewed arguments Wednesday that a 2018 constitutional amendment creating an independent citizens redistricting commission should be overturned because the rules governing who can serve on the commission are too restrictive. 

Wednesday marked the second time a three-member Sixth Circuit Court of Appeals panel heard arguments on the constitutionality of the commission, which began meeting last year. 

A year ago, the Michigan Republican Party, Michigan Freedom Fund executive director Tony Daunt and others were arguing for a preliminary injunction to stop the formation of the commission. They were denied in April by the appellate panel, which consisted of judges Karen Nelson Moore, Ronald Gilman and Chad Readler.

On Wednesday, the parties argued their case in front of the same panel, this time asking them to overturn a lower court's dismissal of the entire case. 

"The problem here is that the proposal that was put forward was skewed," said John Bursch, an attorney for the plaintiffs. 

Bursch argued that the conditions excluding some individuals from becoming commission members violated their rights to equal protection and freedom of association. The amendment bars political party officials, lobbyists, consultants and their relatives from serving on the commission.

"No states out there have approved prohibitions like this," said Bursch. He argued that in some small Michigan townships large portions of the community could be disqualified from serving because they're related to the clerk or mayor. 

Assistant Attorney General Erik Grill said parties were before the appeals panel exactly one year ago putting forth the same arguments. Nothing has changed that would merit a reversal from the judges on the issue, Grill said. 

The limitations established in the 2018 constitutional amendment are common sense and other similar limitations on participation have been upheld by the U.S. Supreme Court, said Grill. 

"The appearance of bias is just as much a problem as the bias itself,” Grill said of the disqualification of individuals related to candidates or elected officials. 

The U.S. Sixth Circuit in April 2020 denied a preliminary injunction to plaintiffs challenging the prohibitions, ruling that the U.S. Supreme Court had “repeatedly” allowed restrictions on participation to avoid “partisan conflicts of interests and unsavory patronage practices.”

The federal district court dismissed the case completely in July, but the plaintiffs appealed the dismissal again to the Sixth Circuit Court of Appeals, prompting Wednesday’s hearing.

The 2018 ballot initiative establishing the independent citizens redistricting commission, run by Voters Not Politicians, received support from about 61% of voters. It established a 13-member commission made up of four Republicans, four Democrats and five non-affiliated members charged with redrawing the state’s voting boundaries every 10 years. 

The first 13-member panel under the constitutional amendment has already begun meeting to redraw the districts for state House, state Senate and Congress.  

Moore pressed lawyers on whether judges would be able to sever the eligibility restriction without declaring the entire amendment unconstitutional. The state argued a "severability provision" was included in the amendment that would allow for part of the amendment to be severed without affecting the entire amendment. 

Bursch argued a negative ruling on one piece of the amendment would disqualify the entire amendment, causing the state to revert to a majority-led redistricting process this year. Parties would have the chance in later years to re-propose the amendment without the restrictions on participation.  

"It’s an all or nothing situation?” Moore asked. 

"That's my view, yes," Bursch said.