Appeals panel allows gerrymander lawsuit to move forward

Beth LeBlanc
The Detroit News
Detail of Michigan Congressional maps approved by Republican-led Legislature in 2011.

A group alleging the state’s voting districts are unconstitutionally gerrymandered can proceed with its case after a panel of three federal judges denied a motion to dismiss the case.

In a 2-1 ruling, U.S. Sixth Circuit Judge Eric Clay and Detroit U.S. District Judge Denise Hood ruled the plaintiffs, led by the League of Women Voters, had the evidence and the standing to challenge the drawing of specific districts because it caused them injury “by diluting their votes.”

Clay and Hood are both appointees of former President Bill Clinton, a Democrat. 

“Emails that the mapmakers exchanged illustrate the profound extent to which partisan political considerations played into their redistricting efforts,” the judges wrote, noting that the “efforts proved extremely successful.”

In November, the judges noted, Democrats won 55.8 percent of the vote, but only 50 percent of the congressional districts. Likewise, Democrats won 52 of 110 House seats while capturing 52.5 percent of the vote.  

Grand Rapids U.S. District Judge Gordon Quist, an appointee of Republican former President George H. W. Bush, said he agreed the plaintiffs had standing to challenge the districts at issue, but he maintained the League of Women Voters lacked support for a statewide claim of gerrymandering.

“The alleged gerrymander discriminated against voters on the basis of their association with a political party, not on the basis of their association with the League,” Quist wrote.

With Friday's ruling, the parties in the lawsuit are scheduled to go to trial Feb. 5, said Mark Brewer, one of the lawyers representing the League of Women Voters and individual plaintiffs in the case. 

"This is just the state’s latest attempt to get the case dismissed, and they have now failed," Brewer said.  

Secretary of State Ruth Johnson, one of the main defendants in the case, is reviewing the decision, spokesman Fred Woodhams said Friday.

The lawsuit, filed on behalf of Democratic voters, alleges Republicans drew maps to benefit their candidates by "packing or cracking" Democrats into a smaller number of winnable districts. Should that argument prevail, plaintiffs are asking the judge that the alleged gerrymander be corrected in time for the 2020 elections. 

Documents and depositions from the lawsuit show mapmakers in 2011 gave top party officials the partisan vote history breakdowns of new districts, shared proposed maps with an interest group linked to the DeVos family, entertained suggestions from at least one GOP donor and faced backlash from incumbents vexed at how their districts were redrawn.

Republican aides suggested ways to contain “Dem garbage” to four congressional districts in southeast Michigan and joked about how one district could be shaped to give “the finger” to a Democratic congressman.

The lawsuit continues even as Michigan prepares to implement a new citizens redistricting commission approved by voters in November that would remove the task of redrawing district lines from the party in power and give it to a bipartisan commission.

In their order Friday, Clay and Hood noted an expert report provided as evidence in the lawsuit that showed several congressional, state Senate and state House districts are “gerrymandered ‘partisan outliers’ that crack or pack Democratic voters and dilute their votes,” the judges wrote. Another expert connected each individual plaintiff by their address to those impacted districts.

“Each Individual plaintiff has shown that because of packing or cracking, her vote currently — in 2018 — carries less weight than it would carry in thousands of hypothetical districts,” the judges wrote.

Clay and Hood were unimpressed with arguments that pointed toward Democrats’ improved fortunes in November as proof there was no gerrymander. Democrats flipped two U.S. House, five state House and five state Senate seats. 

“It is possible that Democrats would have won an even greater number of seats in the 2018 midterm election but for the unconstitutional gerrymander they allege,” the judges wrote.

In another 2-1 ruling Friday, Clay and Hood ruled Michigan's legislators could not intervene in the case, though they allowed for congressional intervenors. The Legislature filed to intervene about four and a half months after congressional intervenors did so, their interest in securing their successor’s re-election would be partisan, and the parties already involved were representing the Legislature adequately, the judges wrote.

In a dissenting opinion, Quist said state legislators should be able to intervene because “the political landscape completely changed” with the election of a Democrat Jocelyn Benson as secretary of state.

“It is difficult to imagine that the new Democrat Secretary will continue to defend a Republican-adopted redistricting plan that is alleged to discriminate against Democrats and the Democratic Party,” Quist wrote.

The ruling comes a day after a Republican state representative introduced a bill that would guarantee the GOP-led Legislature could intervene in legal battles involving state laws. The legislation appears to dilute the duties of Democratic Gov.-elect Gretchen Whitmer and Attorney General-elect Dana Nessel.

(517) 371-3661