Benson, Nessel counter GOP lawsuit over redistricting commission

Jonathan Oosting
The Detroit News

Lansing — Michigan Democratic Secretary of State Jocelyn Benson and Attorney General Dana Nessel are urging a federal court to quickly reject a Republican lawsuit challenging the creation of a voter-approved independent redistricting commission.

In an apparent show of confidence, Benson and Nessel on Monday asked U.S. District Court Judge Janet Neff to hold a pre-motion conference for a pending request to dismiss the high-stakes case even as they prepare an initial legal response to the suit.

The GOP complaint alleges the state's constitutional amendment discriminates against residents with certain partisan ties, including family connections, by prohibiting them from serving on the commission that will draw new legislative and congressional district boundaries for 2022.

Katie Fahey of Voters Not Politicians speaks to supporters at the Michigan Capitol on May 24, 2018.

But in a Monday brief filed on behalf of Benson, who is the named defendant in the case, Nessel's office argued plaintiffs aren't precluded from the commission because of those political relationships. Instead, they are banned because of apparent conflicts of interest.

"The problem that the People of the State of Michigan sought to address with the amendment was the partisanship with which legislative districts were being drawn, and the solution they chose was to take that power out of the hands of people with a direct interest in the outcome," the attorney general said in the filing.

"This is essentially no different than excluding people from jury duty who have a relationship to the parties or who have a stake in the outcome of the case."

Nessel is planning what is known as a "Rule 12" motion to dismiss on the grounds plaintiffs have not stated a claim on which the court could grant relief.

Proposal 2, spearheaded by the Voters Not Politicians committee and approved by 61% of voters, 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 prohibits a parent, child or spouse of any of those individuals from serving 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.

The conservative Michigan Freedom Fund estimates the rules could disqualify more than a half-million Michigan residents from the commission.

The GOP lawsuit alleges the rules violate plaintiffs' 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.

“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.

Bursch did not immediately respond to a Tuesday voicemail seeking comment on Nessel and Benson's new filing.

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.”

If a federal court struck down Proposal 2, whichever party wins control of the Legislature in 2020 would be in charge of drawing new political maps for 2022 but would need to win approval from Democratic Gov. Gretchen Whitmer. 

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 recent lawsuit appears to be unique in that it challenges commissioner qualification rules.

The complaint 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.