Supreme Court kills Michigan gerrymandering challenge, upends 2020 redistricting order

Jonathan Oosting and Melissa Nann Burke
The Detroit News
The U.S. Supreme Court building on Capitol Hill in Washington.

The U.S. Supreme Court on Thursday dealt a fatal blow to a Michigan lawsuit seeking to throw out legislative maps as unconstitutional when the justices declined to set a standard for limiting partisan gerrymandering.

Chief Justice John Roberts, writing for the conservative majority in a 5-4 decision on cases out of North Carolina and Maryland, said such claims involve "political questions beyond the reach of the federal courts." 

While "excessive partisanship" in redistricting legislative boundaries can lead to results that "reasonably seem unjust," the issue is not one for the judiciary to solve, Roberts said. 

"Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions," Roberts wrote. Doing so would be an "unprecedented expansion of judicial power."

The high court sent the North Carolina and Maryland cases back to lower courts to be dismissed for lack of jurisdiction.

A three-judge federal panel in April threw out Michigan maps adopted in 2011 by the Republican-led Legislature, ruling they represented a political gerrymander "of historical proportions" designed to dilute the power of Democratic voters and entrench GOP power. The panel had ordered state lawmakers to redraw the maps by August. 

The Michigan case is still technically on appeal to the Supreme Court but will likely be dismissed as a result of Thursday's ruling, along with all other partisan gerrymandering cases pending in federal courts, legal experts said. 

"We can be 100% confident that the Michigan Legislature isn’t going to have to redraw any districts this summer," said Sam Bagenstos, a professor at the University of Michigan Law School and an expert in constitutional litigation. 

Some experts thought justices might “punt” the gerrymandering cases again, as the high court has done in the past, but the majority instead decided to “walk away” from the issue, said Michael Li of the Brennan Center for Justice at New York University School of Law.

“People who want to fight gerrymandering will have to do so at the ballot box, will have to do so at state court or will have to do so through other means,” Li added.

The Supreme Court in May had suspended an order requiring Michigan to redraw political boundaries for the 2020 election cycle as the high court considered similar issues in the North Carolina and Maryland cases. It would have required Michigan senators to seek re-election half way through their four year terms.

“There are some state senators breathing a little easier this morning, and I guess the State Board of Elections,” said Eric Lupher, president of the non-partisan Citizens Research Council. “Now they don’t have to worry about how to figure all this stuff out.”

But the decision may not have a long-term impact in Michigan, Lupher said, because voters here last fall approved an amendment to the state Constitution creating an independent redistricting commission that will take over map-drawing duties from lawmakers, beginning in 2022.

“Once you get past 2020, and you have the new Census, we’re in a position to unilaterally end gerrymandering in this state and do what the U.S. Supreme Court wouldn’t,” Lupher said.

Kagan: 'Dishonored our democracy'

Justice Elena Kagan wrote a scathing dissent, joined by the high court's three other liberal justices. She accused the majority of refusing to remedy a constitutional violation “because it thinks the task beyond judicial capabilities.”

Partisan gerrymanders in North Carolina and Maryland “deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives,” Kagan wrote.

“In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

Roberts said that, while the Supreme Court has stepped in to settle racial gerrymandering and “one person, one vote” cases, there are no grounds for federal courts to do the same in partisan gerrymandering disputes.

Racial gerrymandering cases call for the end to racial classification, but partisan gerrymandering claims cannot ask for the end of partisanship, he wrote.

The framers of the Constitution anticipated electoral district problems and chose to assign the issue to state Legislatures, checked by Congress “with no suggestion the courts had a role to play.”

None of the “tests” proposed by plaintiffs to prove partisan gerrymandering “meets the need for a limited and precise standard that is judicially discernible and manageable,” Roberts said.

“And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.”

Kagan accused the majority of “abdication,” arguing that lower courts across the country have “coalesced around manageable judicial standards” to correct only the most “egregious gerrymanders” without becoming “omnipresent players” in the political process.

“In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong,” she wrote.

UM's Bagenstos said there's a strong argument that, if you can't go to the courts, where else can you go, since you can't trust a state legislature elected from gerrymandered districts to eliminate the gerrymander. 

"On the one hand, Chief Justice Roberts doesn't want to get involved because he's afraid when they say a redistricting plan is unconstitutional — that's going to be seen as ruling in favor of one political party over the other," Bagenstos said. 

"On the other hand, when the court washes its hands of addressing issues like this, that's taking a position, too, by leaving in place a political gerrymander that was created by a political party to serve its political ends."

Charlie Spies, who represented GOP lawmakers in the Michigan case, called the ruling “good news for representative democracy." The opinion makes "clear that districting decisions belong with the democratic process and not in courts," Spies aid.

House Speaker Lee Chatfield, R-Levering, said the Supreme Court "did the right thing by upholding the will of the voters and leaving state policy decisions to the people of Michigan and their elected representatives."

Michigan's redistricting commission

Democratic Gov. Gretchen Whitmer and Secretary of State Jocelyn Benson expressed disappointment in the ruling but touted last fall’s voter approval of an independent redistricting commission. 

“Michiganders deserve to have their voices heard and their votes counted,” Whitmer said in a statement. “Gerrymandering undermines the basic idea of open and free elections — regardless of political affiliation.”

Benson, a Democrat who had proposed a settlement in the Michigan gerrymandering case that federal judges rejected, said the Supreme Court ruling "closes a vital door for citizens seeking recourse in a fundamental part of our representative democracy." 

The decision increases the importance of Michigan voters' decision last fall to take the process of drawing district lines out of the hands of politicians and placed it "squarely in the hands of our citizens," she said.

Roberts in his opinion noted that "numerous states" are addressing the issue of partisan gerrymandering through state constitutional amendments and legislation by granting power to redraw electoral districts to independent commissions. 

He also noted that Congress could take action on the issue. 

"The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void," Roberts wrote. 

Michigan was one of five states that passed redistricting reforms in 2018, and another two have already so this year, according to Li. “This is a multi-front battle, and it will continue," he said.

Nancy Wang, executive director of Voters Not Politicians, said the group that pushed the Michigan ballot measure last fall is “dismayed” that the Supreme Court “refused to protect the millions of voters across the country whose constitutional rights are violated by extreme partisan gerrymandering.”

Voters Not Politicians is working to ensure Michigan’s new independent commission is rolled out successfully and plans to assist other states with their own redistricting processes, Wang said.

Republican lawmakers had filed an emergency request to the Supreme Court after a three judge panel struck down Michigan maps.

In their April 25 opinion, the three-judge panel overseeing the Michigan case had urged the Supreme Court to curb the practice nationally.

“Judges — and justices — must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering,” U.S. Circuit Judge Eric Clay wrote in the unanimous opinion.

The panel's order required Michigan to redraw at least 34 of the state's 162 congressional and legislative districts and sought to force a special election for Senate seats next year, cutting in half the four-year terms that lawmakers are now serving. 

The “predominate purpose” of the redistricting plan approved by the Michigan Legislature in 2011 “was to subordinate the interests of Democratic voters and entrench Republicans in power,” Clay wrote. “Therefore, the enacted plan constitutes a durable partisan gerrymander" that violates plaintiff voters First and 14th Amendment rights.

The order gave Michigan's Republican-led House and Senate until Aug. 1 to redraw political boundaries and get the plan signed into law by Whitmer. If that didn't happen, the panel said it would appoint a special master to redraw the maps instead. 

In asking the Supreme Court to suspend the order, attorneys for Republican lawmakers argued it would not give them sufficient time to redraw the boundaries.

And "put simply, all of the mandates of the District Court’s order must be done under unsettled legal principles that this court is currently reviewing in other cases," they said.

Unique N.C., Maryland conditions

While the cases before the Supreme Court wrestled with similar issues, each involved unique circumstances.

In North Carolina, lawmakers openly discussed partisan intent during redistricting in 2016 after a federal district court struck down 2011 maps as a racial gerrymander. A legislative committee adopted a criterion holding that the new makeup of congressional districts would continue a 10-3 majority for Republicans.

The Maryland case alleged a partisan gerrymander by Democrats in 2011 designed to flip a specific congressional seat. Longtime Republican Rep. Roscoe Bartlett lost his reconfigured district in 2012 to Democrat John Delaney, who is now running for president.

The Michigan lawsuit was filed on behalf of the League of Women Voters of Michigan and several Democrats who alleged they were harmed by Republican maps that "packed" or "cracked" them into certain districts.

“Today’s U.S. Supreme Court decision is disappointing and will allow those who rigged Michigan’s elections based on partisanship off the hook in federal courts," League President Judy Karandjeff said in a Thursday statement.

The suit initially challenged all legislative and congressional maps but was eventually narrowed to target 34 specific districts. However, redrawing those districts would likely have a spillover effect, affecting many more districts across the state. 

Republicans who drew Michigan boundaries have publicly denied any overt bias and argued they operated within the boundaries of existing laws designed to limit manipulation.

But emails disclosed in the federal lawsuit pointed to a political calculus, and experts described Michigan's maps as among most lopsided in the country.

"We've spent a lot of time providing options to ensure we have a solid 9-5 delegation in 2012 and beyond," GOP mapping guru Bob Labrant, who was serving as legal counsel for the Michigan Chamber of Commerce, told a legislative aide in 2011.

Other emails showed GOP aides suggesting ways to contain “Dem garbage” to four congressional districts in southeast Michigan and joking about how one district could be shaped to give “the finger” to a Democratic congressman.

Congressional mapmaker Jeff Timmer defended the 2011 process at trial, describing what he called a fair and constitutional redistricting plan. He noted it won support from a handful of Democrats in the Michigan Legislature.