Republicans sue to block Michigan redistricting commission

Jonathan Oosting
The Detroit News
Over 100 demonstrators rally outside the Michigan Hall of Justice Wednesday, July 18, 2018, where the Michigan Supreme Court heard arguments on whether the constitution should be amended by voters to change the way political districts are made.

Lansing — Republicans are suing to stop Michigan’s new citizen redistricting commission before it begins, alleging the voter-approved amendment is “blatantly unconstitutional” and discriminates against participants based on political service or family ties.

A high-stakes federal lawsuit filed Tuesday morning with the U.S. District Court in Grand Rapids seeks to invalidate Proposal 2, block implementation and prevent the independent commission from drawing new legislative and congressional district maps for the 2022 election cycle.

Instead, whichever political party wins control of the state Legislature next year would lead that process in 2021 but need approval from Democratic Gov. Gretchen Whitmer. Republicans drew existing lines in 2011 and currently hold majorities in the Michigan House and Senate.

The legal action is backed by the Fair Lines America Foundation, a nonprofit with ties to the National Republican Redistricting Trust. The suit was filed on behalf of 15 Michigan residents who would be excluded from serving on the commission under the new rules.

“Any reform, no matter how poorly conceived, must achieve its goals without infringing on the basic rights guaranteed to all of us by the Constitution,” said Scott Walker, the former Wisconsin governor who is now finance chair for the GOP redistricting group, in a statement. 

“Michigan’s new redistricting commission falls short of that standard by punishing the people of Michigan for exercising those rights — or for being related to someone who has.”

The amendment to the Michigan Constitution prohibits service on the commission by anyone who in the last six years was a partisan candidate, elected official, political appointee, lobbyist, campaign consultant and officer or member of the governing body of a political party.

It also excludes a parent, child or spouse of any of those individuals.

The Voters Not Politicians ballot committee marketed the exclusions as a way to discourage hyper-partisan influence on the 13-member commission, which is designed to include four Republicans, four Democrats and five residents who do not affiliate with either of the two major political parties.

Jamie Lyons-Eddy, director of campaigns and programs for Voters Not Politicians, said she is confident the proposal will survive "any and all legal challenges," noting opponents failed in an attempt to keep the measure off the ballot.

"Now that citizens are in charge of a fair, impartial, and transparent redistricting process, we know that some politicians who will lose power to draw maps in secret for their own benefit will make a last ditch effort to hold on to it," Lyons-Eddy said in a statement.

"Michigan is one of the most gerrymandered states in the nation, but voters pushed back by overwhelmingly supporting the new redistricting amendment so voters choose their politicians — not the other way around."

The GOP lawsuit alleges that rules excluding plaintiffs from serving on the commission violate their First Amendment free speech and association rights, as well as their 14th Amendment guarantee of equal protection under the law. There’s no guarantee someone who works in politics has stronger partisan beliefs or would be less impartial than someone who does not, attorneys argue.

“No American should be barred from holding a government position because they, or someone they are related to, exercised their Constitutional rights,” Walker added. “This lawsuit aims to restore the rights of all Michiganders to freely participate in the political process without the threat of government sanction.”

Michigan voters approved Proposal 2 last fall by 61%-39%. A group backed by the Michigan Chamber of Commerce sued to keep it off the November ballot, but the Michigan Supreme Court ultimately let voters decide its fate.

Secretary of State Jocelyn Benson, a Democrat who is tasked with implementing the commission and recently unveiled draft commissioner applications, is the named defendant in the suit.

“Voters spoke loud and clear last November that they want an independent, citizen-led commission — not partisan politicians — responsible for drawing district lines," Benson said in a statement. 

"My office will stay focused on engaging the public and encouraging full participation in a transparent application and random selection process for this commission, which has the opportunity to map Michigan’s future.”

Democratic Attorney General Dana Nessel said her office will "vigorously" defend Benson and the constitutionality of the ballot proposal. 

“I think it’s another effort by the GOP to circumvent democracy here in the state of Michigan,” said Nessel, likening the Legislature’s adoption and amendment last year of minimum wage and paid sick leave initiatives as a way to undermine the will of voters. 

“This is an effort to undermine that very difficult road and the incredible effort by nearly all volunteers to put that on the ballot,” she said. “People don’t want Michigan to be gerrymandered. Absolutely, I intend to defend that ballot proposal.”

Republican lawmakers controlled the state’s redistricting process in 2011 and were sued over what a federal three-judge panel this year ruled a political gerrymander of “historic proportions” designed to dilute the power of Democratic voters.

The U.S. Supreme Court killed the gerrymandering lawsuit in June, ruling such claims are “political questions beyond the reach of federal courts” and allowing current legislative and congressional maps to stay in place for the 2020 elections.

In the ruling, Chief Justice John Roberts noted that voters in Michigan and other states had chosen to restrict partisan consideration in redistricting “by placing power to draw electoral districts in the hands of independent commissions.”

Michigan is one of more than a dozen states that have adopted redistricting commissions. The U.S. Supreme Court upheld an Arizona commission in 2015, but the Michigan complaint appears to be unique in that it challenges commissioner qualification rules. 

Tony Daunt, a Proposal 2 critic and executive director of the conservative Michigan Freedom Fund, is the lead plaintiff in the new suit. He cannot participate in the commission because he has been a registered lobbyist since 2013 and held recent positions with the Clinton County and state Republican Party.

Daunt, who joined the suit in his role as a private citizen, called the commission “an attack on every Michiganian” and said he’s confident courts will stop its implementation.  

Freedom Fund senior adviser Angela Meyers said the rules could disqualify “more than a half-million” Michigan residents from the commission.

Other plaintiffs include GOP state Sen. Tom Barrett of Charlotte, Republican National Committeewoman Kathy Berden, Republican Women’s Federation of Michigan President Linda Lee Tarver and her husband Clint Tarver, a GOP precinct delegate who operates a hot dog cart in Lansing.

The lawsuit cites a 1990 decision by the U.S. Supreme Court that struck down a politically motivated hiring policy in Illinois. Justices held the First Amendment prohibits a government from basing decisions to hire low-level public employees based on partisan affiliation.

GOP attorneys contend commissioners, who will earn an annual salary of roughly $39,825, will effectively serve as employees of the state.

The ballot proposal approved by voters included a provision stating that any section invalidated by a federal court is “severable” from the whole, meaning the commission itself should survive even if specific rules are tossed out.

But the lawsuit argues the opposite, suggesting the whole proposal should be scrapped because voters who supported it may have believed the commissioner exclusions were “a vital part” of the measure.

The complaint seeks a preliminary and permanent injunction halting Benson from taking any further actions on the commission and a declaration preventing further implementation.

“It is plain that the (Michigan Citizens Redistricting Commission) discriminates against certain Michiganders, including plaintiffs, because they engaged in activities cherished and protected by all Americans,” attorney John Bursch, former state solicitor general, wrote in a memo provided to The Detroit News.

The high-powered legal team working the case includes Jason Torchinsky, a senior adviser and general counsel for the National Republican Redistricting Trust, and Eric Doster, former general counsel for the Michigan Republican Party.

Staff Writer Beth LeBlanc contributed