What goes around, comes around.
What a Republican president, Donald Trump, has been able to accomplish with his judicial appointments in the past two-plus years, a Democratic president, Bill Clinton, perfected a quarter-century ago — and now it appears it’s paying dividends for the Democratic Party.
Anyone who claims appointed federal judges are “non-partisan” once they ascend to the bench is simply naive, to put it mildly. The connection between the partisan affiliation of the appointer and the appointee is strikingly predictable, with few exceptions.
In that regard, many legal observers remember that President William Jefferson Clinton left his imprint on the U.S. Supreme Court with his nomination of Justices Ruth Bader Ginsburg and Stephen Breyer.
However, Clinton’s lasting judicial legacy was best illustrated over the past two weeks when a pair of three-judge panels in Michigan and Ohio unanimously struck down Republican-enacted redistricting laws passed back in 2011.
Both panels had a strong Bill Clinton connection. As the inimitable redistricting maven, attorney Bob LaBrant, has pointed out, the Chief Judge of the 6th Circuit Court of Appeals is empowered by federal law to select two of the three federal judges who served on the Michigan panel (in a lawsuit filed by the League of Women Voters) as well as two of the three federal judges who comprised the Ohio panel who decided the redistricting cases in their respective states. The Chief Judge of the 6th Circuit Court is R. Guy Cole, Jr., who may be the most important judicial figure in the Midwest that nobody has ever heard of.
Guy Cole appointed four of the six judges who sat on both three-judge panels hearing partisan gerrymandering lawsuits in Michigan and Ohio. The 6th Circuit Court of Appeals is headquartered in Cincinnati, Ohio. It has jurisdiction over all federal courts in Tennessee, Kentucky, Ohio and Michigan. Chief Judge Cole was appointed to the 6th Circuit Court of Appeals by President Clinton in 1995. His law degree is from Yale University, the same law school which graduated Bill and Hillary Clinton.
Cole became chief judge in 2014. Chief judges are selected by a combination of age, seniority, and a little luck — it doesn’t hurt to be in the right place at the right time. Whenever a chief judge reaches the age of 70, s/he is required to step down from that post, not necessarily to leave the bench but maybe to what is known as “senior status.” His or her successor as chief judge will be another judge on the 6th Circuit Court of Appeals who has the most seniority but has not yet attained the age of 65. Chief Judge Cole will become 70 on May 23, 2021.
Federal law requires that federal redistricting lawsuits be heard by a three-judge panel. A redistricting lawsuit is filed in federal district court. The case is assigned to a district judge by blind draw. In the LWV case, Judge Denise Page Hood was assigned the case. She was appointed to the district court in the Eastern District of Michigan by President Clinton. Judge Hood notified Chief Judge Cole at the 6th Circuit of the redistricting case. As chief judge, Cole named two other federal judges to the panel. One must be a circuit court judge.
Chief Judge Cole named Eric Clay, a circuit judge from Michigan appointed by Clinton, to the panel. Cole also named Gordon Quist, a district court judge from Grand Rapids in the Western District of Michigan who at the age of 82 is on senior status. Quist was appointed by President George H.W. Bush.
Partisan gerrymandering lawsuits based on what is called the “packing and cracking” of Democratic voters as measured by an index of “wasted votes” called the “efficiency gap,” was first litigated in 2015 in Wisconsin in Whitford v Gill. Two of the three judges on that panel were named by the Chief Judge of the 7th Circuit Court of Appeals, Diane Wood, appointed by Clinton in 1995. She became chief judge in 2013 through the process described above. The Gill case reached the U.S. Supreme Court during its 2017-2018 term but was remanded back to the three-judge panel for a lack of “standing” without addressing the underlying partisan gerrymandering claim.
The Gill case awaits a new trial after the U.S. Supreme Court issues its decision, expected this June, in consolidated partisan gerrymandering cases from North Carolina and Maryland. Those two states are both in the 4th Circuit Court of Appeals. The Chief Judge is Roger Gregory, who received a recess appointment as a circuit judge by President Clinton in 2000. Gregory became chief judge in the 7th Circuit in 2016.
These three Clinton Circuit Judge appointments, now acting as chief judges in their respective circuits, have selected 10 of the 15 judges who have served on the five three-judge panels that have all ruled that the redistricting plans in those five states were unconstitutional partisan gerrymanders.
Specifically, here in Michigan, on April 25 this three-judge federal panel (Eric Clay, Denise Page Hood, and Gordon Quist) struck down all three Michigan redistricting plans (Congressional, state Senate and state House) passed in 2011 as unconstitutional gerrymanders violative of the 1st and 14th Amendments.
The panel’s unanimous order requires that nine Congressional districts out of 14 be redrawn for the 2020 election to remove impermissible packing and cracking of Democratic voters. Redrawing nine district lines may result in many more districts having new boundaries because of the cascading effect on adjacent districts.
The panel also ordered 10 state Senate districts out of 38 be redrawn. Those Senate districts are ordered to have special elections in 2010 electing senators in those affected districts for a two-year term. More on the impact of term limits on state senators later in this article.
Finally, the panel ordered 15 state House districts out of 110 be redrawn for 2020. The cascading effect will impact far more state legislative districts than the 10 Senate and 15 House districts named in the order.
The panel gave the legislature and Governor until this coming August 1 to enact remedial maps. The panel also asked the parties to reach a consensus on a list of three individuals for the judges to consider in naming a Special Master to draw maps if the Legislature fails to enact or the panel rejects their revised maps. That list is to be submitted to the panel in less than two months — by July 1.
The three intervenors (the Republican Congressional delegation, Republican state senators and leaders, Republican state House leaders) filed notice of appeal with the U.S. Supreme Court on April 30. A motion to stay the panel’s April 25 order is expected to be filed soon.
Under federal law, the opinion and order of a three-judge panel convened to hear a statewide redistricting lawsuit has an automatic appeal to the U.S. Supreme Court, thus by-passing the usual appeal of a federal district court ruling to the Circuit Court of Appeals. The U.S. Supreme Court has three options:
- It can summarily affirm the three-judge panel’s ruling.
- It can summarily reverse the panel’s order.
- It can order briefing and oral argument to be held during the next Supreme Court term (October 2019-June 2020).
Under the latter circumstance, a stay on what just happened would be ordered. The panel’s April 25 order would be moot, and the 2020 elections would continue to be conducted under the current 2011 districts. No state Senate special elections would be held in 2020.
During every Supreme Court term, there are cases that give a refresher course on the finer points of civil procedure. Last Supreme Court term (2017-2018) in the Gill case from Wisconsin, it was on “standing.” Standing means a plaintiff must show the court sufficient connection to and harm from the law that it is challenging. The three-judge federal panel in Wisconsin addressed the standing issue in their opinion. The Supreme Court decided the plaintiffs did not have standing and remanded the case back to the panel without addressing the underlying gerrymandering claims.
This term, in the Maryland and North Carolina partisan gerrymandering cases, the U.S. Supreme Court may revisit the doctrine of “non-justiciability” last addressed in 2004 in the Vieth case from Pennsylvania. In 2004, Justice Anthony Kennedy could have been the 5th vote to reverse the 1986 Indiana case Davis v Bandemer which held that partisan gerrymandering is subject to judicial review. Justice Kennedy concurred in the result upholding the Pennsylvania plan, but said he was prepared to wait to see if a manageable standard to determine when partisan gerrymandering was too extreme might one day emerge. Now Justice Kennedy is gone, replaced by Justice Brett Kavanaugh.
It’s worth pointing out that, up till now, no redistricting plan has ever been struck down by the U.S. Supreme Court as an unconstitutional gerrymander.
When the LWV v Benson case reaches the U.S. Supreme Court during its 2019-2020 term, the U.S. Supreme Court may reacquaint us with the doctrine of “laches.” Laches is where you wait too long to exercise your legal rights. Simply put: Use it or Lose it.
From a “laches” perspective, the LWV did not litigate any partisan gerrymandering claim against the 2011 laws providing for Congressional, state Senate and state House districts passed by the Legislature and signed by Governor Snyder prior to the 2012 elections. The LWV did not litigate in 2013 after the 2012 elections. The LWV did not litigate in 2014 prior to the 2014 elections. The LWV did not litigate in 2015 after the 2014 elections. The LWV did not litigate in 2016 prior to the 2016 elections. The LWV did finally file a lawsuit in the Federal Court for Eastern District of Michigan during the last week in December 2017 — too late to affect the 2018 elections. Depositions were not taken until last August, and a trial was not conducted until this past January.
The three-judge panel’s April 25 order will affect only the 2020 elections, the last election cycle of the decade. Districts will be redrawn by either the Legislature or for the three-judge panel by a special master for the 2020 elections alone, using results from the 10-year old 2010 census. The 2022 election, one election later, will have new district lines drawn using 2020 census results by an Independent Redistricting Commission.
As with the Gill case on standing, the issue of latches was addressed by the three-judge panel in the LWV case. Perhaps the U.S. Supreme Court will have the last word on latches as early as next month.
On March 26 of this year, the U.S. Supreme Court held oral argument in two gerrymandering lawsuits which will have an impact on the Michigan lawsuit, one from Maryland, the other from North Carolina. A decision from the Supreme Court on these consolidated cases is expected no later than the week of June 24.
Many court observers, after witnessing the March 26 oral arguments, expect a 5-4 decision. The Justice most in doubt is Brett Kavanaugh, who acknowledged during oral argument his concerns about extreme gerrymandering (he resides in Maryland, where Republicans claim they have been a victim of gerrymandering). However, during oral arguments, Justices Kavanagh, Gorsuch and Alito all stated that several states are addressing extreme gerrymandering without the intervention of the federal courts. They pointed to Michigan and Colorado, both of which amended their state constitutions in 2018, addressing gerrymandering with the adoption of Independent Redistricting Commissions. Those same justices spoke approvingly of the Pennsylvania Supreme Court, which in 2018 struck down the 2011 legislatively-enacted Congressional redistricting map as violative of the Pennsylvania Constitution’s requirement that districts break few county boundary lines.
Chief Justice John Roberts, during the 2017-2018 term, expressed concern that partisan gerrymandering lawsuits will flood the Supreme Court’s docket every term.
Roberts may be right. After North Carolina and Maryland this term, Michigan, Ohio and Wisconsin may be on the next term’s case call unless five justices hold that partisan redistricting cases are non-justiciable, reversing the 1986 Davis v Bandemer case. Four votes were there for non-justiciability in Vieth in 2004, but Justice Anthony Kennedy voted only to concur in the result, holding out the possibility that a manageable “standard” to determine when partisan gerrymandering is too extreme might one day emerge. In 2018, Kennedy declined to find in Wisconsin’s Gill v Whitford case that the Efficiency Gap, measuring “wasted votes,” was that elusive manageable standard he had been waiting for. Kennedy retired in 2018 to be replaced by Justice Kavanagh. Chief Justice Roberts called the efficiency gap sociological gobbledygook. The current Michigan three-judge panel relied heavily upon the Efficiency Gap in their analysis.
For all these reasons and others, LaBrant concludes that it is likely that a 5-4 decision finds that partisan gerrymandering cases are non-justiciable.
It is far less likely that a 5-4 majority emerges in the North Carolina’s Rucho v Common Cause and Maryland’s Benisek v Lamone cases with a manageable standard to determine when a partisan gerrymander is too extreme. Justice Kagan would likely write such an opinion joined by Justices Ginsburg, Breyer and Sotomayor. That still requires those Clinton and Barack Obama appointees to enlist a Republican appointee who somehow faked his Federalist Society vetting to join them. If the U.S. Supreme Court rules that way in the consolidated North Carolina and Maryland cases, the LWV v Benson opinion and order will likely be summarily affirmed on appeal. Under that extraordinary circumstance, Michigan congressional, state Senate and state House districts would be redrawn for the 2020 elections along with holding special Senate elections with a one-time two-year term.
WHAT HAPPENS TO THE MICHIGAN SENATE IF THE APRIL 25 FEDERAL COURT ORDER ACTUALLY TAKES EFFECT?
In 1992, voters amended the Michigan Constitution to provide for term limits, including members of the state legislature. Michigan has the most restrictive legislative term limits in the nation.
Article 4, Section 54 provides:
…No person can be elected to the state senate more than two times. Any person appointed or elected to fill a vacancy in the house of representatives or the state senate for a period greater than one half of a term of such office, shall be considered to have been elected to serve one time in that office for the purposes of this section.
All senators first elected in 2018 that are required to run in special senate elections in 2020 for a two-year term will not have that 2020 election count as their second senate election. In 2022 those same senators first elected in 2018 and re-elected in 2020 may run for the senate in 2022 for a four-year term.
That is because in 2020 those senators were elected to fill a vacancy created by the federal court order. The term they would be elected to in 2020 would be for just two years; which is equal to, but not greater than, one half of a term for such office. So, the 2020 special Senate election is not considered one election for term limitation purposes.
What about senators first elected in 2014 and re-elected in 2018? May they run in the special election in 2020 for a two-year term? Here there are two ways the Constitution can be interpreted:
These senators have already been elected twice, which is the constitutional limit. This would require their Senate careers to end with sine die adjournment in December 2020.
However, an alternative argument can be made:
Although the 2018 election was not a special election, those affected senators had their terms cut short by a judicial order. Those senators served just one half of their terms for that office. Under Article 4, Section 54, that shortened term is not of sufficient length to have the 2018 election be considered one election toward the two-election limit. This would allow those affected senators to run to fill a vacancy for a two-year term which again is equal to, but not greater than, one half of a term for such office. Under the express provisions found in Article 4, Section 54, on filling vacancies, the 2020 election is not treated as one election for term limitation purposes. So those senators initially elected in 2014 will have accrued just one election that counts against the two-election limit. The 2018 and 2020 elections are not treated as an election that counts against the two-election limit. Therefore, those affected senators could be eligible to run for a full four-year term in 2022, redefining what two “times” means for term limitation purposes.
Who will make that legal determination? Clearly this is a decision for the Michigan courts to decide, not the federal panel which heard the LWV v Benson case.
But rather than litigate, could an interested person (current senator first elected in 2014) simply handle this administratively by asking the Secretary of State for a declaratory ruling about his or her eligibility to file for state Senate office in 2020? Would the Secretary of State issue a declaratory ruling, or would she feel compelled to request an Attorney General opinion on the question?
If it becomes necessary for term limit issues to be litigated, since term limits and candidate eligibility are state constitutional issues, the Michigan Court of Claims, not the federal district court, is the proper venue to begin such a lawsuit.