Former justice discourages redistricting commission from using UM guidance

Beth LeBlanc
The Detroit News

Former Michigan Supreme Court Justice Stephen Markman is urging the state's new redistricting commission against using racial, ethnic or religious groups as a determiner of the state's new voting boundaries for the 2022 election. 

In a Wall Street Journal op-ed Friday, Markman encouraged the commission to consider actual neighborhood and municipal boundaries when redrawing the state voting maps instead of more nebulous bonds such as shared concerns over the environment, creative arts communities, media markets or tax assessment districts — elements a University of Michigan study offered as examples of "communities of interest."

A redistricting commission that prioritizes traditional municipal boundaries when redrawing voting maps should avoid using "'racial, ethnic and religious' calculations" as proxies for drawing maps that provided partisan advantage in the past, Markman wrote. 

State of Michigan Supreme Court Chief Justice Stephen Markman

"The Michigan Independent Citizens Redistricting Commission can do the public a great service by uniting behind an electoral map that curtails gerrymandering, partisanship and self-dealing," Markman wrote in the Wall Street Journal.

"Or it can continue these same abuses, albeit in a camouflaged manner, by transforming the people of Michigan’s towns, cities and townships into a mere assemblage of favored and disfavored interest, identity and affinity groupings."

The UM report attempting to define communities of interest was ready in time for the launch of the Michigan Independent Redistricting Commission last year and the Department of State included the report in a packet of background material for commissioners, said Thomas Ivacko, executive director for UM's Center for Local, State and Urban Policy. 

While there's room for "competing points of view" on the redistricting process, Ivacko said, it was voters who decided to give a high priority to communities of interest in the constitutional amendment they approved in 2018.

"We did not propose these changes," Ivacko said. "In fact, our report was not intended to address these kinds of tradeoffs in redistricting, or to address other of the myriad aspects of redistricting. It was intended only to address the new citizen-approved aspect that does prioritize communities of interest as key building blocks." 

The 2018 constitutional amendment ranked "communities of interest" the third of seven priorities that should be considered when redrawing the maps and "county, city and township boundaries" as the sixth, said Edward Woods III, communications and outreach director for the commission.

"As outlined in Michigan’s constitution, the MICRC defines communities of interests to include historical or cultural characteristics or economic interests," Woods said in a statement. "In addition to communities of interest, the third criteria also instructs that the districts reflect the state’s diverse population."

Markman, who retired from the Michigan Supreme Court at the end of 2020, said his report responding to UM's recommendations was commissioned by Hillsdale College, where he is a professor of constitutional law. 

In his report, Markman noted that "communities of interest" historically and by court precedent have meant voting boundaries based on townships, cities and counties but UM officials instead reinterpret the term to prioritize interest groups, ideology, race and religion. 

The constitutional language says communities of interest "may" include populations sharing cultural, historical or economic interests, Markman said in his report.

The priority of communities of interest over boundaries respecting townships, cities and counties should not discount the important role municipal boundaries have played in past Michigan Supreme Court decisions on redistricting, the Hillsdale report said. 

The UM report, Markman said, "makes optional that which is obligatory and obligatory that which is optional.”

"None of these approaches — by concocting creative and dubious 'communities of interest' on the one hand, and by excluding the most obvious and historically-grounded 'communities of interest' on the other — constitute a fair or reasonable way of understanding the amendment," Markman said.  

On Monday, Markman told West Michigan Live host Justin Barclay that the recommendations he submitted to the commission on behalf of Hillsdale College urged commissioners to adopt "more traditional theories" that looked to geographical boundaries ahead of racial or ethnic groups. 

"Our state Constitution has never identified those bases before," Markman told Barclay. "The new amendment doesn’t identify race, ethnicity and religion. This is a kind of made up term to describe the identity groups that the university and the secretary of state want to establish as the new foundation of our electoral system.”

Markman was one of three Republican-nominated justices in 2018 who dissented against a majority opinion that allowed the question of an Independent Citizens' Redistricting Commission to appear on the November 2018 ballot, where it passed with the support of 61% of voters. The commission is in the midst of its first redistricting process. 

In 2018, Markman dissented from the majority opinion because he argued the changes the ballot proposal eclipsed a mere constitutional amendment, and instead should be considered a "general revision" to the Constitution requiring a constitutional convention.

“The VNP proposal would affect the ‘foundation’ power of government by removing altogether from the legislative branch authority over redistricting and consolidating that power instead in an ‘independent’ commission made up of 13 randomly selected individuals who are not in any way chosen by the people, representative of the people, or accountable to the people,” Markman wrote in 2018.

The redistricting commission is scheduled to have the last of its 16 public hearings Thursday in Grand Rapids. The commission is expecting to receive legacy census data in August and official census data in September. 

The Michigan Supreme Court is considering whether to grant the commission a delay to the deadline for completing the new voting maps because of the delayed census data, which usually is available in late March or early April.