Michigan Republican Party sues to stop independent redistricting commission

Jonathan Oosting
The Detroit News

Lansing — The Michigan Republican Party is suing to block the formation of a voter-approved independent redistricting commission that would draw new state legislative and congressional district boundaries for 2022 and beyond.

A complaint filed Thursday in Grand Rapids federal court argues the commissioner selection process violates the GOP’s freedom of association rights by precluding parties from picking their own representatives to serve on the panel.

Michigan Republican Party Chair Laura Cox acknowledges the crowd at the state convention, Saturday, Feb. 23, 2019, at the Lansing Center in Lansing.

State Party Chair Laura Cox called the amendment to the state Constitution “an assault on the associational right of political parties” and suggested it could allow fake Republicans to fill the party’s four reserved slots on the commission.

“This also gives the Democrat leadership the ability to knock off our people … that are allegedly Republicans that we haven’t even selected,” she told The Detroit News. “So it becomes very problematic that we don’t get to have a role in choosing who’s involved.”

Democrats have not raised any objections to the selection rules for the commission, which was promoted as a way to curb partisan gerrymandering and must include four members from each major political party and five who are not affiliated with either.

“The entire point of Proposal 2 — now Michigan law — is taking the politics out of our democracy and putting power back in the hands of the people," said Michigan Democratic Party Chair Lavora Barnes. "That is where Michigan Democrats stand on this and every issue — with the people.”

The process requires commission applicants to attest under oath if they affiliate with either the Republican or Democratic party, but it does not require the state to verify that status, and Michigan does not require or allow voters to register by party.

Instead, the amendment to the Michigan Constitution allows partisan majority and minority leaders in the state House and Senate to strike up to five applicants each — 20 total — from randomly selected pools of 60 Republicans, 60 Democrats and 80 non-affiliated applicants.

From the remaining pools, the secretary of state must then randomly draw the names of four Republicans, four Democrats and five applicants not affiliated with either major party to serve on the commission.

Applicants can self-designate their affiliation with the Michigan GOP “without any involvement or consent of the applicable political party and without any specific consideration of the applicants’ past or current political activity, expression or involvement,” the complaint argues.

Attorneys including GOP election law experts Gary Gordon and Charlie Spies contend the rules could allow Democrats to self-designate as Republicans “in an effort to alter the party’s selection process and weaken its representation on the commission by individuals who genuinely affiliate with MRP.”

The GOP lawsuit is "not surprising" given the party's role in what a three-judge federal panel recently called a 2011 gerrymander of "historical proportions," said Nancy Wang, executive director of the Voters Not Politicians group that pushed the ballot initiative.

The suit is a reminder of "what's at stake," Wang said in a statement. "Those who have the most power to lose will do whatever they can to keep hold of it, but we are confident the redistricting amendment will withstand this legal challenge and all others, and that the will of the people will prevail."

Republicans, who controlled the last redistricting process in 2011, opposed the ballot proposal last fall and have taken their battle to court in an attempt to upend an amendment approved by 61% of voters.

The Thursday filing is the second lawsuit targeting the commission in as many months.

In separate litigation backed by the National GOP Redistricting Trust, 15 individual Republicans sued the state in July alleging voter-approved rules discriminate against them because of certain partisan ties, including family connections, by prohibiting them from serving on the commission.

Tony Daunt, who is a plaintiff in the initial suit, applauded the latest GOP complaint seeking to block what he called a “fatally flawed” commission.

“The Constitution protects political parties’ ability to pick their own representatives, but this majority partisan commission denies that right,” he said in a statement.

Democratic Secretary of State Jocelyn Benson and Attorney General Dana Nessel have criticized the GOP litigation and this week signaled their intent to seek dismissal of the initial case.

“Our position on this matter has not changed," Nessel said Thursday. "Our office will continue to vigorously defend (Benson) and the legality of the redistricting commission, preserving the will of the people and their right to adopt amendments to Michigan’s Constitution at the polls."

The new GOP complaint makes similar arguments over applicant eligibility rules.

Individual plaintiffs include Cox and four other Republicans who “wish to serve” on the commission but are precluded because of partisan ties, including former Secretary of State Terri Lynn Land, who is now chair of the 3rd Congressional District GOP, and Savina Alexandra Zoe Mucci, the daughter of recently term-limited state Sen. Tonya Schuitmaker.

“Plaintiffs face the untenable decision to either limit their political association and expression or be subject to automatic and absolute exclusion from service on the commission,” the complaint contends, alleging infringement of association and free speech rights.

Michigan is one of more than 20 states that have adopted some kind of an independent or bipartisan redistricting commission, but Republicans say the state’s limited role for political parties appears unique.

In Idaho, state party chairs get two appointments on the six-member commission. In Arizona and California, voters must be a registered member of a political party for at three or five years, respectively, and legislative leaders have more direct say in the membership selection process.

The Michigan version “doesn’t allow the Republican Party to select its members who represent us,” said state GOP general counsel Stu Sandler.

“In every other system that’s been created like this, political parties or legislative leaders have had the ability to select, or there’s been a strong history of voter registration so that you can tell who’s been a part of the party and who hasn’t.”

The suit also alleges the voter-approved amendment “intentionally disfavors” the Republican Party by giving it four seats — the same as the Democratic Party — while unaffiliated applicants get five seats.

The complaint argues the state amendment is unconstitutional under the federal First and 14th amendments and seeks a preliminary court injunction prohibiting Benson — who attorneys call a "a highly partisan" official in position to resolve disputes — from implementing the commission.

Benson spokeswoman Shawn Starkey said Thursday the secretary of state "will remain focused on honoring and respecting the will of the voters, who last November made a clear statement that they want an independent, citizen-led commission – not partisan politicians – drawing Michigan’s districts."

If the amendment is tossed, the political party that wins control of the state Legislature in 2020 would oversee the process but would need to draw maps that win approval from Democratic Gov. Gretchen Whitmer.

Republicans currently enjoy majorities and had full control of the process in 2011. They were eventually sued over what a federal three-judge panel this year ruled a significant political gerrymander 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.”

The Michigan Republican Party and individual plaintiffs in the new lawsuit are "not necessarily opposed to the general concept of a redistricting commission, but they vehemently oppose any commission that is structured in a manner that violates their civil rights," attorneys say in the complaint.