Jurisprudence

Democracy on the Ballot

Michigan voters want a chance to end partisan gerrymandering. Republican judges might not let them.

Dan Kildee at a podium that says #FairMaps.
Rep. Dan Kildee of Michigan speaks outside of the Supreme Court during oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on Oct. 3, 2017, in Washington.
Olivier Douliery/Getty Images

If you’re looking for an exemplar of all that can go wrong in American law and politics, keep an eye on a case this week in the Michigan Supreme Court. It’s got gerrymandering, it’s got shadowy interest groups, and it threatens to disenfranchise Michigan’s voters—twice over—and tarnish the reputation of its judiciary besides.

Voters in Michigan, like voters in states across the country, have for years had their voices diluted by partisan gerrymandering. That practice, in which politicians draw legislative maps to enhance political advantage, packs voters from each party into noncompetitive legislative districts. As a result, citizens are denied the opportunity to cast meaningful general-election ballots. In gerrymandered districts, it’s effectively a foregone conclusion that the Republican, or the Democrat, is going to win.

There is widespread consensus that partisan gerrymandering is a bad thing. Bipartisan majorities of the American public oppose the practice, and the U.S. Supreme Court has called it “incompatible with democratic principles.” Yet gerrymandering is notoriously difficult to stop. When legislators are charged with drawing district boundaries, they have every incentive to cocoon themselves and their partisan allies into “safe” districts populated primarily by members of their own party. Asking legislators to stop gerrymandering means asking politicians to surrender political advantage.

In Michigan, fed-up citizens took matters into their own hands. A grassroots group called Voters Not Politicians collected almost 425,000 petition signatures—100,000 more than were needed—to get a proposal for an “independent redistricting commission” placed on the ballot this November. The initiative, which would amend the Michigan Constitution, calls for the state Legislature to be stripped of the power to draw districts, instead vesting that power in an independent, nonpartisan commission.

A group called Citizens Protecting Michigan’s Constitution filed a lawsuit challenging the proposal’s place on the ballot, but that challenge was unanimously rejected by a three-judge panel. That rejection made sense, as constitutional amendments of this type are procedurally routine. In the past half-century, the Michigan Constitution has been amended 10 times via citizen-sponsored initiatives. What’s more, citizens in other states have used the exact same mechanism to break partisan gerrymandering’s stranglehold on their politics. Voters in California and Arizona, for example, have directly amended their state constitutions to provide for independent redistricting commissions.

Nevertheless, the Michigan Supreme Court stepped in earlier this month and announced it would hear an appeal in the case. That raised alarm bells, because the court did not have to take the case at all. Its decision to consider the appeal—set for oral argument on Wednesday—suggests serious interest in removing the redistricting question from the ballot.

Such an outcome could be calamitous. Removing the redistricting question from the ballot would be legally wrong. It would damage the credibility of Michigan’s judiciary. And it would severely undermine democracy in Michigan.

Start with the law. The challengers’ primary contention is that the proposed redistricting amendment is really a comprehensive “revision” of the state constitution, which cannot be enacted by Michigan voters. That argument has its roots in two separate provisions in Michigan’s constitution. The first provision says that citizens can “amend” the constitution via a popular vote. The second says that “general revisions” to the constitution may be enacted at a constitutional convention. Harmonizing these two provisions, Michigan courts have held that specific, limited “amendments” may be enacted by a majority vote, whereas far-reaching “general revisions” must be enacted via convention.

But there are vanishingly few Michigan cases in which courts have held that a proposed change qualifies as a “general revision.” Indeed, the amendment process has repeatedly been used to enact sweeping changes to Michigan’s constitution. In 1992, for example, Michigan voters amended the constitution to impose term limits on congressional, legislative, and executive officers. Two years later, voters approved a multisubject amendment that raised sales taxes, limited property tax assessments, overhauled school funding, imposed a tobacco tax, and required a vote of three-quarters of the Legislature to change certain laws. Neither of those far-reaching ballot questions qualified as a “general revision.” And compared with those amendments, Michigan’s circumscribed redistricting proposal—which covers just a single issue—is downright modest.

With sparse Michigan precedent to support their position, the challengers rely on cases from California courts. That is a puzzling strategy: California law is not particularly relevant to the Michigan Constitution. But even if it were, recall that California voters in fact adopted an independent redistricting commission via a ballot question. California’s experience thus cuts squarely against the notion that a constitutional convention is needed.

In short, the main legal argument against placing redistricting reform on Michigan’s ballot is highly dubious. Indeed, now that the case has reached the state Supreme Court, the challengers are playing down that argument a bit in favor of what has always been a secondary contention in the case: a hypertechnical claim that the petitions people signed were invalid because they failed to “reproduce” a hodge-podge of peripheral constitutional provisions that could be indirectly affected by the amendment. That claim also misses the mark. Michigan’s Supreme Court has expressly warned that petition-gatherers should not confuse voters by reproducing “a maze of constitutional provisions”—which is precisely what the challengers assert should have been done.

In light of the challenge’s legal infirmity, a Supreme Court decision to remove redistricting reform from the ballot would raise an unavoidable appearance of partisanship. In Michigan, gerrymandering strongly favors Republicans, with the state’s Republican lawmakers drawing some of the country’s most lopsided legislative maps. Unsurprisingly, Michigan’s Republican Party has publicly expressed its strong opposition to independent redistricting efforts. The kicker? Michigan is one of just 10 states that provide for partisan election of judges. Five of the seven justices on the Michigan Supreme Court are Republicans. Two of those Republicans are up for their party’s nomination in August, and for re-election this fall. If those justices vote to kick independent redistricting off the ballot—thereby protecting their party’s gerrymandered advantage—the scent of partisanship will be overwhelming.

It gets worse. Citizens Protecting Michigan’s Constitution, the shadowy group challenging the redistricting initiative, is heavily funded by the Michigan Chamber of Commerce. In recent years, the Chamber has spent lavishly to elect Republicans to the state Supreme Court. In 2016, it spent more to elect two Republican justices than those justices’ campaigns and the state Republican Party combined. Were the court’s Republican members to torpedo redistricting reform, it would create the inference that they acted at the behest not just of their party, but also of their biggest campaign contributor.

Those optics aren’t just bad—they’re unacceptable. As the U.S. Supreme Court has repeatedly admonished, “justice must satisfy the appearance of justice.” That’s why judges must recuse themselves from cases where the risk of bias appears intolerably high. Given the swirling morass of partisanship and money in this case, any decision by Republican justices to push redistricting reform off the ballot would appear unjust indeed. And that, in turn, would severely tarnish the Michigan Supreme Court’s reputation as an independent actor.

A decision to remove redistricting reform from the ballot, particularly under such dubious circumstances, would be yet another blow for democracy in Michigan. Due to extreme partisan gerrymandering, many Michiganders have never been able to cast a meaningful legislative ballot. If a partisan court rules against the redistricting proposal, those residents would again have their voices abridged—denied the opportunity to cast a ballot on the very reform that could make their votes matter.

If the court boots the redistricting question, in other words, Michiganders will effectively be doubly disenfranchised. That would be an ignominious distinction for the state to carry.