Federal panel to decide fate of Mich. congressional map after unequal population complaints

Beth LeBlanc
The Detroit News

Grand Rapids — A federal three-judge panel will decide whether Michigan's newly adopted congressional district map should be redrawn to secure more equal populations after more than an hour of arguments Wednesday that one judge described as an "exercise in tediousness."

An attorney for several Michigan Republicans argued Wednesday that the Michigan Independent Citizens Redistricting Commission was not able to show that neutral and consistent criteria drove the group's decision to forgo more equal populations in favor of communities of interest.

"They've just not articulated anything," said Jason Torchinsky, a lawyer for the Republicans challenging the map. 

Michigan's Independent Citizens Redistricting Commission adopted three plans for the voting districts that will govern Michigan's 13 congressional districts, 38 state Senate seats and 110 state House seats for the next decade. A federal three-judge panel will decide whether the congressional district map should be redrawn to secure more equal populations after more than an hour of arguments that one judge described as an "exercise in tediousness."

Torchinsky asked the judges to order "small, surgical" changes to the map to balance out numbers, noting "population equalizing is an exercise that mapmakers can do relatively quickly."

The suit filed earlier this year challenged the commission's new 13-district congressional map on the grounds that it didn't comply with the federal concept of "one person, one vote" requiring equal population numbers among districts. 

The lawsuit noted several districts were under and over the 775,179-person limit per district with two coming 487 and 635 people outside of the total. The majority of other U.S. states are able to come much closer in balancing their populations among districts, Torchinsky argued.  

The commission countered Wednesday that it had stayed within what it believed were practicable deviations from the required population totals. The group's litigation lawyer, Richard Raile, said the commission had to balance population totals against maintaining communities based on a host of criteria, including media markets, historical significance or cultural ties. 

He said what the Republicans were asking was easier said than done, comparing population tweaks to attempting to solve a Rubik's cube.

"The problem with assuming we can do that is that it's bald speculation," Raile said. 

Four members of the commission were in attendance Wednesday: Commissioners Anthony Eid, Rebecca Szetela, Dustin Witjes and Cynthia Orton. 

The three-judge panel — made up of Sixth Circuit Court of Appeals Judge Raymond Kethledge, and U.S. district judges Janet Neff and Paul Maloney — peppered both sides with questions during the hearing. All of them were appointed by Republican former President George W. Bush. 

Kethledge questioned why the Republicans did not produce a map with those "surgical" adjustments if it was as easy as they said. Without showing it was possible, he said, the plaintiffs were asking the panel to consider "the advisability of ordering an abstraction."

"You're just offering your own sense of that," he told Torchinsky. "You're telling, not showing."

The Republicans did provide an alternate map in their initial filing but it was largely built around the group's communities of interest claim, which was thrown out earlier this month. 

Neff criticized the arguments against the deviations in population as "niggling" and an "exercise in tediousness."

"Isn't this a little like asking how many angels can dance on the head of a pin?" Neff asked.

"It's an exercise in tediousness," she added. "They have laid out what they think is a valid map...and all you're doing is niggling" over relatively small deviations.

Though the court previously dismissed a challenge to the map for how it implemented "communities of interest," the arguments Wednesday often came back to that concept since it was one of the reasons cited for population deviations among the districts. 

The judges noted there wasn't a consistent definition for communities of interest in the Michigan Constitution, but it was not something they could weigh in on. 

Torchinsky warned that — without a clear definition for communities of interest or any solid stopping point on population deviations from the court — future commissions could draw maps with even wider deviations. 

"If you allow it here, there's no definitional limitation to it," he said. 

Kethledge, noting the commission pointed to public comment to justify its decisions, asked both parties to submit proof from public comments opposing or supporting the claim that the public wanted the communities of interest cited by the commission over more equal population distributions. 

Parties are required to submit those citations by Tuesday.

Heather Meingast, an assistant attorney general representing Michigan Secretary of State Jocelyn Benson in the case, asked that the court, regardless of its ultimate decision, keep timing in mind. The filing deadline for candidates is April 19 and whatever changes were suggested for the map would have to be updated in the qualified voter file before that time.

"It's a Herculean task. It's time-sensitive. It's labor-intensive," Meingast said. "There isn't going to be a way for us to do that and meet the April 19 deadline."