The high bar Democrats need to clear in order to win back the majority
By Theodore S. Arrington
Editor’s note: This is an updated version of a story previously published in June 2015 in Sabato’s Crystal Ball
Redistricting the U.S. House of Representatives is not a unified, national process, unlike most national legislatures. Rather, it’s the result of cumulative actions taken by individual states. Nevertheless, it is useful to look at the entire House to see how the decisions in the states combine to form a fair or an unfair playing field for the parties.
The most commonly used method for analyzing the partisan nature of the redistricting process is the seats/votes relationship. For this analysis, a simple regression is used to relate the percentage of the two-party votes that the Democrats received to the percentage of the seats they won. The Pearson’s R2 tells us how strongly the allocation of seats is related to the votes received by each party. The slope of the regression line is called the swing ratio, and tells us how responsive the system is to changes in the vote. One can determine partisan bias by simply solving the regression equation for the situation in which the Democrats received 50% of the votes. At that level, they should also receive about 50% of the seats if the playing field is level.
Determining the percentage of the two-party votes received by Democratic candidates for the House requires attention to two questions. The first question is how to count elections in states that have majority vote requirements with runoff elections after November, and elections in which all the candidates in the November general election are in the same party, as can happen in the jungle-primary system used in California. If the candidates in the final election were both in the same party, I counted the contest as unopposed for that party.
A second question is what to do with these unopposed contests. I define an opposed contest as one in which there was both a Republican and a Democratic candidate in the November election. If the vote in unopposed contests is included, the total for the party that had the most unopposed candidates is inflated, because their opponents would have received at least some votes. If the vote of the unopposed candidates is excluded, the vote of the party with the most unopposed candidates is understated because unopposed candidates would undoubtedly receive a substantial majority of the votes if they were opposed.
One way to deal with this problem is to substitute the vote of some other set of candidates in districts where the congressional candidate is unopposed. But on a nationwide basis, the only office available for that job is the presidency, and that is only available in half the congressional elections because House seats are contested every two years while the presidency is contested every four. Moreover, this is exactly the wrong office to use, because here is great variation in presidential and congressional voting. Votes for U.S. Senate or governor could be substituted into unopposed races, but this also has problems. Voters typically know more about candidates for these offices; only 33 or 34 of the states have a Senate election in any year; and nearly all governors now have four-year terms.
My solution is to estimate the vote that each party would receive in unopposed contests and add this to the vote in the opposed races. The formulas for the adjustment of the vote for each party is:
d = x + amv + bm(1 – v)
r = y + bmv + am(1 – v)
d = estimate of Democratic vote
r = estimate of Republican vote
x = vote for all opposed Democratic candidates
y = vote for all opposed Republican candidates
a = number of unopposed Democratic candidates
b = number of unopposed Republican candidates
m = mean number of votes cast for both Republican and Democratic candidates in opposed contests
v = proportion of the vote that unopposed candidates would have received if they had been in an opposed contest
The two-party voter turnout in unopposed districts is assumed to be equal to the mean turnout in opposed contests. This is designated as “m” in the formula.
Gary Jacobson of the University of California, San Diego estimates the percentage of the vote that we would expect unopposed candidates would have received, on average, if they had been opposed (v in the formula) at 71% with a standard deviation of 10%. His analysis is based on the support that congressional candidates received in the election following or preceding the one in which he or she was not opposed.
With this calculation I derived the percentage of the two-party vote that the Democrats received in recent elections. These figures deviate little from other measures of the “total vote” without this adjustment. Over the years I have collected the data from a variety of reliable sources, most commonly the Clerk of the U.S. House. The data for 2016 comes from the Cook Political Report.
The logical place to start the analysis is with the 1972 election, which is the beginning of the first redistricting cycle after the U.S. Supreme Court required congressional districts to be one-person-one-vote. In the period from 1972 to 2016, only in 1996 and 2012 did the party that received the most adjusted votes fail to receive the most seats in the House. In 1996, the Democrats received 50.02% of the two-party vote (adjusted), but failed to retake the House from the GOP. In 2012, the Democrats received 50.6% of the two-party vote, but again failed to retake the House. Given the power of incumbency, the “out” party may need to get well over 50% of the two-party vote to take over the house even if there is no gerrymandering. The Republicans received 54.5% of the two-party vote in 1994 to take over the House, and the Democrats took it back in 2006 with 53.9%. The Republicans took it back again in 2010 with 52.9%.
Table 1 shows the number of unopposed contests for both parties in each election since 1972. In general, the party with the most momentum going into the election period had the largest number of unopposed contests, as one would expect. The number of unopposed Democrats has been going down as the Republicans first became competitive in the South and then became dominant there. The number of unopposed Republicans has been going up over time mainly as a result of those same changes in the South.
Table 1: Number of unopposed Democrats and Republicans running for Congress 1972-2016
It is reasonable to count the nine elections in California in which Republicans failed to advance to the general election as unopposed Democratic districts for my calculations. If the Republicans are so weak in a district that no Republican can survive the jungle primary, then it is reasonable to count that district as being similar to other districts in which there is no Republican candidate in the general election. None of these elections in 2016 were the odd result of a jungle primary in which the Republican vote was split between a large number of candidates allowing two Democratic candidates to survive the jungle in a Republican-leaning district.
In 2016, both parties had about the same number of unopposed contests: 35 for the Democrats, and 29 for the Republicans. In this situation, my adjustment procedure makes little difference in the Democratic percentage of the two-party vote.
Table 2: Statistics on seat/vote relationship 1972-2016
Note: *Preliminary figures with only three data points.
Table 2 shows the correlation, slope, and bias figures for the entire period and for each recent redistricting cycle. Figure 1 shows a scatterplot of this relationship during the entire period from 1972 to 2016, while Figure 2 shows the relationship during the 2012 to 2016 period. The Pearson correlations indicate that the allocation of seats is consistently related to the votes cast. For this entire period the swing ratio has been appropriately at or above 1.0, indicating adequate response to changes in the vote. Over the entire period, the system has had little partisan bias — a Republican advantage of only 0.1%, which is perhaps an additional one seat if the vote were evenly split. However, in the 1970s and 1980s, the Democrats had a sizable advantage, while in more recent elections this advantage has shifted from a very slight Democratic bias in the 1990s to a somewhat larger Republican advantage starting in 2002. Thus, the overall fairness statistics disguise substantial variation over time.
Figure 1: Scatterplot of Democratic percentage of the two-party adjusted vote to Democratic percentage of the seats in the House won 1972-2016
Figure 2: Scatterplot of Democratic percentage of the two-party adjusted vote to Democratic percentage of the seats in the House won 2012-2016
The 2012-2016 elections show an enlargement of this Republican bias. If the vote were evenly split, the Democrats would get only 45.7% of the seats on average (199 seats out of 435). This pretty well describes what has been happening during this decade. In 2012, the Democrats received 50.6% of the votes (adjusted), but only 46.2% of the seats. In 2014, the Democratic percentage of the adjusted votes declined to 47.6%, and they won only 43.2% of the seats. In 2016, the Democrats did slightly better with 49.2% of the votes, but still won only 44.6% of the seats. Some mid-decade redistricting (especially in Virginia) seems not to have affected the overall pattern for the current cycle.
The Democrats would need to get 55% of the adjusted vote to win a majority of the seats, and that may not include any additional vote that would be necessary to overcome the larger number of Republican incumbents. This level of Democratic dominance is unlikely but possible. The Democrats received more than 55% of the adjusted vote only in 1974, 1976, and 1982. The 1974 and 1976 elections were reactions to Watergate. The 1982 election was a reaction to the Reagan conservative administration. Perhaps a reaction to the Trump presidency might give the Democrats the lift they need to retake the House.
The more recent Republican advantage may be due, in part, to the requirements of the Voting Rights Act (VRA) to create majority-minority districts, thus artificially packing the most reliable Democratic voters in a few districts. The high point of this requirement, however, was in the 1990s, when there was almost no partisan bias. Thus the VRA is not inconsistent with unbiased redistricting or even a pattern that has a small Democratic bias. To some extent, the bias may derive from the way in which Democratic and Republican voters are concentrated geographically, and not with the implementation of the Voting Rights Act per se. The power of incumbency also helps the Republicans in the post-2010 period when they have most of the incumbents. It is clear, however, that one cause of the current bias must be gerrymandering in several large states by Republican state legislatures and governors in the redistricting cycle following the 2010 census.
Table 3 compares the vote of the major party presidential nominees to the adjusted and unadjusted vote for the major party candidates for the U.S. House.
Table 3: Comparison of presidential and U.S. House vote in 2016
Hillary Clinton ran well ahead of Democratic candidates for the House. Looking only at the votes actually cast for the House (i.e., without adjustment), she led the ticket by over 4 million votes. Adjusting for unopposed contests, she leads the adjusted House vote by over a million and a half votes. On the other hand, Donald Trump ran about 200,000 behind the votes actually cast for Republican House candidates. The Trump vote was more than three million votes short of the adjusted Republican vote in the House. President Trump has no evidence from these data that he was responsible for the Republicans’ continued majority in the House. One could even speculate that he was responsible for the small net loss the Republican suffered. The Republicans in the House retained control without his help, or possibly in spite of it. Given that straight-ticket voting seems to have become more prominent in recent years, the gap between the Clinton and House Democratic vote is interesting and suggests some lines for further investigation based on polling information. But few definitive conclusions can be reached from these kinds of data, as a multitude of possible interpretations are possible.
This article was originally published in Sabato’s Crystal Ball & can be found here.
Tiny Ireland has produced more great writers per capita than any country in the world — think Joyce, Shaw, Wilde, Yeats, O’Casey, Synge, and Seamus Heaney, to name a few. Most of these were poets and playwrights.
Not so well known are Irish political theorists, but there have been several, like the 18th century giants Edmund Burke and Jonathan Swift, regarded by many as the foremost prose satirist in the English language. More recently, the late Alexander Cockburn distinguished himself. Nowadays, one of the most incendiary is Ian O’Doherty, an avowed atheist who writes columns for The Irish Independent.
About a week after the Nov. 8, 2016, general election in the United States, O’Doherty wrote the following column. This piece is now two months old, but with just days remaining before Donald Trump takes the oath of office as the USA’s 45th president, it still seems fresh and bears further inspection:
“Tuesday, November 8, 2016 — a day that will live in infamy, or the moment when America was made great again?
“The truth, as ever, will lie somewhere in the middle. After all, contrary to what all his supporters and detractors believe — and this is probably the only thing they agree on — Trump won’t be able come into office and spend his first 100 days gleefully ripping up all the bits of the Constitution he doesn’t like.
“But even if (the election’s) seismic shock wave doesn’t signal either the sky falling in or the start of a bright new American era, the result was, to use one The Donald’s favourite phrases, YUGE. It is, in fact, a total game changer.
“In decades to come, historians will still bicker about the most poisonous, toxic and stupid election in living memory.
“They will also be bickering over the same vexed question: how did a man who was already unpopular with the public and who boasted precisely zero political experience beat a seasoned Washington insider who was married to one extremely popular president and who had worked closely with another?
“The answer, ultimately, is the question.
“History will record this as a Trump victory, which of course it is. But it was also more than that, because this was the most stunning self-inflicted defeat in the history of Western democracy.
“Hillary Clinton has damned her party to irrelevance for at least the next four years. She has also ensured that Obama’s legacy will now be a footnote rather than a chapter. Because the Affordable Care Act is now doomed under a Trump presidency, and that was always meant to be (Obama’s) gift, of sorts, to America.
“How did a candidate who had virtually all of the media, all of Hollywood, every celebrity you could think of, a couple of former presidents and, apparently, the hopes of an entire gender resting on her shoulders, blow up her own campaign?
“I rather suspect that neither Donald nor Hillary know how they got to this point.
“Where she seemed to expect the position to become available to her by right — the phrase “she deserves it” was used early in the campaign and then quickly dropped when her team remembered that Americans don’t like inherited power — (Trump’s) first steps in the campaign were those of someone chancing (his) arm. If he wasn’t a staunch teetotaller, many observers would have accused him of only doing it as a drunken bet.
“But the more the campaign wore on, something truly astonishing began to happen: the people began to speak in a voice which, for the first time in years in the American heartland, would not be ignored.
“Few of the people who voted for Trump seriously believe that he is going to improve their fortunes. Contrary to the smug, middle-class media narrative, they aren’t all barely educated idiots.
“They know what (Trump) is, of course they do. It’s what he is NOT that appeals to them.
“Clinton, on the other hand, had come to represent the apex of smug privilege. Whether it was boasting about her desire to shut down the remaining coal industry in Virginia — that worked out well for her, in the end (Editor’s note: Clinton carried Virginia) — or calling the electorate a “basket of deplorables,” she seemed to operate in the perfumed air of the elite, more obsessed with coddling idiots and pandering to identity and feelings than improving the hardscrabble life that is the lot of millions of Americans.
“Also, nobody who voted for Trump did so because they wanted him as a spiritual guru or life coach.
“But plenty of people invested an irrational amount of emotional energy into a woman who was patently undeserving of that level of adoration.
“That’s why we’ve witnessed such a fury from her supporters — they had wrapped themselves so tightly in the Hillary flag that a rejection of her felt like a rejection of them. And when you consider that many American colleges gave their students (the day after the election) off because they were too “upset” to study, you can see that this wasn’t a battle for the White House — this was a genuine battle for America’s future direction. AND, INDEED, FOR THE WEST (emphasis O’Doherty’s).
“We have been going through a cultural paroxysm for the last 10 years — the rise of identity politics has created a Balkanized society where the content of someone’s mind is less important than their skin colour, gender, sexuality or whatever other attention-seeking label they wish to bestow upon themselves.
“In fact, where once it looked like racism and sexism might be becoming archaic remnants of a darker time, a whole new generation has popped up that wants to re-litigate all those arguments all over again.
“In fact, while many of us are too young to recall the Vietnam War and the social upheaval of the 1960s, plenty of observers who (do recall those events) say that they haven’t seen an America more at war with itself than it is today.
“One perfect example of this New America has been the renewed calls for segregation on campuses. Even a few years ago, such a move would have been greeted with understandable horror by civil rights activists — but this time it’s the black students demanding segregation and “safe spaces” from whites. If young people calling for racial segregation from each other isn’t the sign of a very, very sick society, nothing is.
“The irony of Clinton calling Trump and his followers racist while she was courting Black Lives Matter was telling.
“After all, no rational white person would defend the KKK, yet here was a white woman defending both BLM and the New Black Panthers — explicitly racist organizations, with the the NBP, in particular, openly espousing a race war if they don’t get what they want.
“Fundamentally, Trump was attractive because he represents a repudiation of the nonsense that has been slowly strangling the West.
“He represents — rightly or wrongly, and the dust has still to settle — a scorn and contempt for these new rules. He won’t be a president worried about microaggressions, or listening to the views of patently insane people just because they come from a fashionably protected group.
“(Trump) also represents a glorious two fingers to everyone who has become sick of being called a racist or a bigot or a homophobe — particularly by Hillary supporters who are too dense to realise that she has always actually been more conservative on social issues than Trump.
“That it might take a madman to restore some sanity to America is, I suppose, a quirk that is typical to that great nation — land of the free and home to more contradictions than anyone can imagine.
“Trump’s victory also signals just how out of step the media has been with the people. Not just American media, either.
“In fact, the Irish media has continued its desperate drive to make a show of itself with a seemingly endless parade of emotionally incontinent gibberish that, ironically, has increased in ferocity and hysterical spite in the last few days.
The fact that Hillary’s main cheerleaders in the Irish and UK media still haven’t realised where they went wrong is instructive and amusing in equal measure. They still don’t seem to understand that by constantly insulting (Trump’s) supporters, they’re just making asses of themselves.
“One female contributor to this newspaper said Trump’s victory was a “sad day for women.” Well, not for the women who voted for him, it wasn’t.
“But that really is the nub of the matter — the “wrong” kind of woman obviously voted for Trump. The “right” kind went with Hillary. And lost.
“The Irish media is not alone in being filled largely with dinner-party liberals who have never had an original or socially awkward thought in their lives. They simply assume that everyone lives in the same bubble and thinks the same thoughts — and if they don’t, they should.
“Of the many things that have changed with Trump’s victory, the bubble has burst. Never in American history have the polls, the media and the chin-stroking moral arbiters of the liberal agenda been so spectacularly, wonderfully wrong.
“It was exactly that condescending, obnoxious sneer towards the working class that brought them out in such numbers, and that is the great irony of Election 2016 — the Left spent years creating identity politics to the extent that the only group left without protection or a celebrity sponsor was the white American male.
“That it was the white American male who swung it for Trump is a timely reminder that while black lives matter, all votes count — even the ones of people you despise.
“You don’t have to be a supporter of Trump to take great delight in the sheer, apoplectic rage that has greeted his victory.
“If Clinton had won and Trump supporters had gone on a rampage through dozens of American cities the next night, there would have been outrage — and rightly so.
“But in a morally and linguistically inverted society, the wrong-doers are portrayed as the victims. We saw that at numerous Trump rallies: protesters would disrupt the event, claiming their right to free speech (a heckler’s veto is not free speech) and provoking people until they got a dig before running to the media and claiming victimhood.
“But, ultimately, this election was about people saying enough with the bullshit. This is a country in crisis, and most Americans don’t care about transgender bathrooms, or safe spaces, or government speech laws. This is about people taking some control back for themselves.
“It was about them saying they won’t be hectored or bullied by the toddler tantrums thrown by pissy and spoiled millennials, and they certainly won’t put up with being told they’re stupid and wicked just because they have a difference of opinion.
“But, really, this election is about hope for a better America; an America which isn’t obsessed with identity and perceived “privilege;” an America where being a victim isn’t a virtue and where you don’t have to apologise for not being up to date with the latest list of socially acceptable phrases.
“Trump’s victory was a two fingers to the politically correct.
“It was a brutal rejection of the nonsense narrative that says Muslims who kill Americans are somehow victims. It took the ludicrous Green agenda and threw it out. It was a return, on some level, to a time when people weren’t afraid to speak their own mind without some self-elected language cop shouting at you. Who knows, we may even see Trump kicking the UN out of New York.
“Frankly, if you’re one of those who gets their politics from Jon Stewart and Twitter, look away for the next four years, because you’re not going to like what you see. The rest of us, however, will be delighted.
“This might go terribly, terribly wrong. Nobody knows — and if we have learned anything (from November 8), it’s that nobody knows nuthin’.
“But just as the people of the UK took control back with Brexit, the people of America did likewise with their choice for president.”
If a court can rule the Wisconsin state legislature does not have enough Democrats, it takes voting power away from the citizenry.
A federal district court is attempting to nullify the results of the last four elections in Wisconsin by declaring that the state legislature does not have enough Democrats. “Political gerrymandering” by the Republican-controlled state legislature, the court has concluded, has caused such an unfair result in favor of Republicans in the state legislature as to constitute a violation of the Equal Protection Clause—a conclusion that the Supreme Court has never reached.
In Article I, Section 4’s language about the “time, place, and manner” of holding elections for the federal House and Senate, the Constitution provides that state legislatures shall draw up voting districts for elections to the U.S. House. The Constitution says nothing about the drawing up of legislative districts for state offices.
That was considered a state political prerogative under federalism—until the Supreme Court repealed its own precedents and drastically altered the “political question” doctrine in its reapportionment and redistricting decisions in Baker v. Carr (1962), Westberry v. Sanders (1964), and Reynolds v. Sims (1964). With the passage of the Voting Right Act in 1965, the Supreme Court’s supervision of both federal and state reapportionment became comprehensive.
How To Decide A Political Gerrymandering Case?
Since the mid-1960s, almost all of the Supreme Court’s decisions in this area concern violations of the “one-man, one-vote” principle and/or allegations of racial gerrymandering. There have been only two cases of significance regarding the different principle of “political gerrymandering,” that is, the drawing up of legislative districts by the party in control of the legislative to favor its own candidates.
In Davis v. Bandemer (1986), the Court, in a plurality opinion addressing the claims by Democrats against the makeup of the Indiana legislature, held for the first time that claims of political gerrymandering could be adjudicated. But the Court also held that the apportionment scheme drawn up by the Republican legislature in Indiana had an insufficiently “adverse effect” on Democrats to constitute a violation of the Equal Protection Clause. While recognizing “the delicacy of intruding on this most political of legislative functions,” the Court concluded that a case of “discriminatory vote dilution” by a political party was possible.
But in Vieth v. Jubelirer (2004), the Court addressed the possible standard of proof a court could use and rejected a suit by Democrats that the 2001 reapportionment by the Pennsylvania legislature had violated their rights under the Equal Protection Claus. In the plurality decision for the court, four judges concluded that “eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.”
Justice Kennedy, who was not on the Court for the Davis decision, voted with the plurality on the facts of the Pennsylvania case but refused to join the plurality in overruling Bandemer. As for “how” to decide a political gerrymandering case, the Court observed that the fact that the four dissenters in the case could “come up with three different standards—all of them different from the two proposed in Bandemer and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard.”
It’s A ‘Pro-Republican Efficiency Gap’
In a 116 page, 416 footnote opinion, the federal district court in Wisconsin thinks that it has discovered such a standard. The court compares the number of state legislative seats won by each party to the total statewide popular vote for those seats. Thus, the court says, “In 2012, Republican voters garnered 48.6% of the [statewide] vote, but secured 60 seats in the Assembly [the state house]. In 2014, Republicans increased their vote percentage to 52 and secured 63 Assembly seats.”
The court concluded that the districting plan drawn up by the Republican-controlled legislature had created a voter “efficiency gap” and had caused the Democrats to have “wasted votes” in districts that they won too handily. The court held the Democrats could have used those votes to be more competitive in other districts, and the court was precise in stating the harm caused: there was a “pro-Republican efficiency gap” of 13 state house seats in 2012 and 10 state house seats in 2014. The court attributes almost no significance to the fact that the Republicans won control of the state legislature in the 2010 elections, not the 2012 or 2014 elections, under a redistricting plan put into effect by the court itself.
As legal support, the Wisconsin court really had only the opening left by Justice Kennedy in refusing to overrule Bandemer. Nevertheless, the court went on a scavenger hunt through Bandemer, Vieth and other Supreme Court decisions to find passages in plurality, concurring, and dissenting opinions to support its determination to create new constitutional law. Three of the most important cases that the court relied on as legal sources concerned racial not political gerrymandering.
With Big Data, Will Courts Control Representation?
The court has, therefore, required both the Democratic plaintiffs and the state of Wisconsin to come up with new redistricting plans. But it is more than obvious that the court has already done that work, including the precise calculations cited above, for the Democrat plaintiffs. And what can the state of Wisconsin do to counter that? It appears that it can do nothing. The court acknowledges that Wisconsin’s redistricting plan was based on “traditional districting principles” of compactness, contiguity, and respect for political subdivisions. And the case involved no allegations whatsoever of racial gerrymandering.
In other words, Wisconsin blamelessly configured its voting districts but was blamed anyway for failing a duty that it did not know existed. In this era of Big Data, in which every precinct (in every state) has statistics on the exact number of registered Democrats and Republicans, it seems that the result is a foregone conclusion: “efficiency gap” proportional representation.
In measuring statewide “wasted votes” for state legislative offices, the efficiency gap does not take into account that voters do not vote statewide. They vote for individual candidates in individual districts. Nor do they necessarily vote by party. In presidential elections, for instance, candidates Ronald Reagan, Barack Obama, and Donald Trump have all been candidates who attracted crossover voters. As for the statewide voting for governor in what the court thinks is Democratic Wisconsin, Republican Scott Walker has won that vote three times in this decade. In district-based elections that they win overwhelmingly, the Republicans have “wasted votes” as well. And should not the large number of independent voters be figured into the calculations?
The “efficiency gap” and “wasted votes” calculations may sound rather simple, but they are in fact based on sophisticated statistical interpretations by experts involving software models, regression analyses, and “S curves.” That is, unlike the act of voting, they are removed from the comprehension of the vast majority of citizens. So, the new model elections will be decided by these new means. Thus, voting, the first act of citizenship, will be regulated by courts and the experts they give credence to.
This article was written by Thomas Ascik & originally published by The Federalist, access the article here.
Less than a week remains before a court-imposed deadline for Democrats and Republicans to present responses to each others’ initial briefs on how to remedy what a three-judge federal panel says is an unconstitutional gerrymander of Wisconsin’s Congressional and legislative districts.
Depending on what happens in Wisconsin, there could be ramifications in other states, including Michigan, on maps that were reapportioned back in 2011. The court has set a January 5, 2017, deadline for the two sides to tell the court what each party thinks should happen next.
Wisconsin Democrats contend that work on redrawing the state Assembly map should begin immediately, with or without the participation of state lawmakers. Dems want any new map ready for elections in 2018 and 2020.
Not surprisingly, the Wisconsin Department of Justice, headed by a Republican Attorney General, argues that the three-judge federal panel hearing the case should wait to order a plan to replace the 2011 state Assembly map until after the U.S. Supreme Court has acted on its inevitable appeal.
Briefs from both sides were filed 10 days ago at the request of the panel, which ruled in a split, 2-1, verdict in November that the 2011 redistricting plan, drawn up by Republican legislators, is an unconstitutional partisan gerrymander. When the panel made its ruling, it did not decide (for the time being) how it would change the map, instead ordering both sides to write briefs telling the panel what they believe should happen. On Jan. 5, both sides will file responses to the other’s position.
In its brief, Democratic lawyers asked the panel to bar further use of the 2011 Assembly map so that the Wisconsin DOJ can immediately appeal. But, while the appeal is ongoing, Dems say the panel should begin the process of redrawing the map. The Democrats argue that the panel may allow legislators to redraw the map but, if so, the panel should compel legislators and the governor to adopt “a firm timetable, clear line-drawing criteria and concrete disclosure instructions.” If the court decides to draw the map itself (which a Michigan appellate panel did in this state back in 1992), such an effort should have line-drawing constraints that are even more strict.
Republicans and the state DOJ’s lawyers disagree with the panel’s decision that the 2011 redistricting plan is unconstitutional. Nevertheless, the GOP contends the court is within its rights to direct the Legislature to revise Assembly districts to comply with the panel’s order — but should wait to do so until after the state’s appeal has been heard by the U.S. Supreme Court.
Of course, the federal high bench is currently one member short because of the refusal of the U.S. Senate’s majority Republicans to consider a replacement for the late Justice Antonin Scalia. Most observers deem the U.S. Supremes are split, 4-4, as to partisan leanings, although GOP-appointed Justice Anthony Kennedy is thought to be “wobbly” and could side with any Democratic argument on redistricting.
A President Donald Trump appointment to replace Scalia might be critical to a final decision that could have national ramifications, although, if Kennedy sides with the court’s four liberal members, whomever Trump names could be irrelevant.
Depending on what happens with the red-hot Congressional/legislative redistricting case before a three-judge federal court in Wisconsin, Michigan Democrats may decide to pounce sooner rather than later.
Former Michigan Democratic Party Chairman Mark Brewer is undoubtedly looking for something to do now that his client Jill Stein’s effort to force a recount of Michigan’s presidential vote has been deep-sixed.
No place better to look than a federal court in Detroit and a favorable Democratic judge like Mark Goldsmith or Gershwin Drain. That would be where Brewer could file a law suit as early as next year in the wake of a Wisconsin verdict in the case of Whitford v Gill. Brewer would allege that Michigan’s 2011 reapportionment of Congressional and state legislative districts was just as much a partisan gerrymander as Wisconsin’s and that it must be shredded and replaced immediately, mid-decade.
Brewer would want to take advantage of the fact that the chief judge of the 6th Circuit Court of Appeals, which would flesh out a three-judge panel on the Michigan case with two other federal jurists, is a Democratic appointee. In fact, after the 2020 census, Democrats may have every incentive to jump the gun as they did back in 1991 and file a federal redistricting lawsuit early in 2021 while that same federal appellate chief judge is still in place.
Bob LaBrant, Michigan’s premier historian when it comes to judicial politics, notes that, in a statewide redistricting case, it’s the Chief Judge of the federal circuit who appoints two of the three judges to serve on the panel. Currently, that would be Guy V. Cole, Jr., of Ohio. Cole was appointed to the 6th Circuit by then-President Bill Clinton in 1995. He assumed his position as Chief Judge on August, 2014.
A chief judge can serve in that capacity for seven years or until the chief judge reaches the age of 70, whichever comes first. Cole was born on May 23, 1951, so he will be chief judge until May 23, 2021, assuming he remains in good health.
Cole’s colleague on the appellate bench, Jeffrey Sutton, also of Ohio, was appointed by then-President George W. Bush in 2003 and will have the most seniority of the active judges and be only 61 in 2021.
If Brewer files a Whitford v. Gill-type case sometime between next year and 2019, alleging a partisan gerrymander in Michigan, the judge in Michigan’s Eastern District who is assigned the case (in a blind draw) must notify Cole, sitting in Cincinnati. It will then be Cole who will name the two other judges, one of whom must be a circuit judge, to serve on the three-judge panel.
Remember, judges — both elected and appointed — are politicians, and no politicians are more partisan than “independent” members of the judiciary. Why? Because judges are the only politicians who can be partisan and yet plausibly claim that they aren’t.
One major piece of legislation was approved in the 98th Michigan Legislature’s lame duck session, which adjourned Dec. 15 except for a few last-minute house-keeping duties on New Year’s Eve.
In the dying hours of lame duck, lawmakers gave final approval to an overhaul of the state’s energy policy in a deal brokered by Gov. Rick Snyder. That was the one big accomplishment; meanwhile, a number of other measures died on the vine. That included reform of public school and local government employee benefits; tightening voter ID laws; codification of “Citizens United” campaign finance; giving the Capitol Committee in Lansing bonding authority for infrastructure improvements on the aging edifice; and imposing new striking worker penalties.
One package of bills on a subject that, year-in and year-out, gets far more attention from the general public than any of the issues mentioned above was also given short shrift. That would be modifying or amending Michigan’s controversial law on term limits for state elected officials. In this case, “law” means constitutional language adopted by voters in a statewide plebisite in 1992.
Since 1992, no effort has been mounted by any citizen activist group, the news media, or special interest to amend or rescind Michigan’s constitutional bar against serving more than three two-year terms in the state House of Representatives or two four-year terms in the state Senate or in statewide offices like Governor, Lieutenant Governor, Attorney General, or Secretary of State. Instead, critics have made periodic efforts to browbeat state legislators into producing a 2/3 majority vote in each chamber to put term limits reform on the ballot. In other words, induce lawmakers who are in place because of term limits to ask voters to perpetuate the legislators now that they’re there. For that and other obvious reasons, that dog has never come close to hunting.
Until, maybe, early last month, just after the general election. That’s when term-limited state Rep. Lisa Lyons (R-Alto), the newly-elected Kent Co. Clerk, scheduled six term limit reform resolutions for two days of public hearings before her House Elections Committee in Lansing’s Anderson House Office Bldg.
On the docket were House Joint Resolution C, sponsored by Rep. Jeff Farrington (R-Utica); HJR Q, sponsored by Rep. Charles Smiley (D-Burton); HJR TT, sonsored by Rep. Tom Barrett (R-Potterville); and three HJRs sponsored by state Rep. Ed McBroom (R-Norway) — HJR V, W, and X.
These resolutions ranged from trying to limit terms for members of Congress (part of the 1992 constitutional amendment struck down by a federal court), to allowing state legislators to serve in either chamber for a limited number of years, be it less than the current total of 14 (12) or more (16); to extending the maximum number of terms to 12 years in each chamber; to scuttling term limits completely for both the executive and legislative branches; to abolishing term limits just for the legislature; and to removing the “lifetime” ban in the Michigan version by allowing lawmakers to “sit out” for a term after a certain length of service but then be able to return if elected by the voters.
Testifying were a variety of sponsors (Barrett and McBroom) as well as legal scholar Bob LaBrant of the Sterling Corporation; David Guldenschuh of the Heartland Institute; and former state Rep. Tom McMillin, elected in November to an eight-year term on the state Board of Education. Also asked to speak was former state Rep. and state Senator Bill Ballenger, publisher of The Ballenger Report. Here is what he said:
“Madame Chairwoman, members of the Committee, thank you for asking me to testify on these bills. I see on the agenda that today’s hearing is supposed to focus on HJR TT, on which you just heard testimony from its sponsor, Rep. Barrett. Tomorrow, you’re evidently intending to discuss HJR V, WW, and X, but I can’t be here, so I hope you’ll allow me to expand my remarks to cover all the resolutions lodged in your committee on the subject of term limits (Rep. Lyons assures him that is appropriate) … OK, let me just say in a broad brush — and I hope I’m not hurting anybody’s feelings when I say this — that I don’t think any of these resolutions is any good, at least as written. There is one that has merit, and I’ll get to that in a minute, but the other thing I would emphasize is that if this committee, and the Legislature as a whole, is really serious about doing something about term limits, BE PRACTICAL. Consider HJR TT — it revisits the old question of whether the terms of service of Members of Congress can be limited. As you know the courts have struck that down, so no single state can do that. Only the Congress itself can be the judge of the qualifications of its own Members. HJR TT attempts to get around this problem by calling a national constitutional convention. I suppose you could try to do that, or amend HJR TT to memorialize Congress to call for such a convention, or simply to approve a constitutional amendment that would have to be ratified by three-quarters of the states. Supposedly, two states have already called for a national Con-Con, but it’s unclear whether each such request has to be on the same subject, in this case term limits, or whether such a convention could be confined to just one subject. Anyway you look at it, assuming that you can get a 2/3 majority of the Michigan legislature, or a 2/3 majority of some three dozen states necessary to call a national convention is simply fantasy. It’s not going to happen. Why waste time on it?
“As far as term limits for Michigan legislators is concerned, remember, this is a constitutional amendment we’re talking about, so it will require a vote of the people. There have been quite a few polls taken in the past quarter-century on this subject, and it depends how you word the question, but the vast majority show either that term limits still has plurality or majority support among the electorate, or the citizenry is so divided that nobody, or any organization, wants to gamble on expending the resources in time and money to try to get a term limits reform amendment on the ballot and then try to sell it to the voters of Michigan. They’re too afraid they’d lose, and they probably would, especially if it would be to totally REPEAL term limits, like HJRs Q and V, or, practically speaking, HJR C, which would EXTEND terms to 12 years in each chamber. The only chance you have is a modification of Rep. McBroom’s HJR W, with a whiff of his HJR X thrown in. W would raise Michigan’s ceiling from the current 14 years to 16 years, and it would allow them to be served in either chamber. X is modeled on what they’ve got in Ohio — you could serve four two-year terms in the House and/or two four-year terms in the Senate, then you would have to sit out a term, but then you could run again for either the House or Senate and start the cycle all over again. In other words, get rid of the lifetime ban.
“Let me just go back in time a little. I remember 1992, when term limits was on the ballot in Michigan. As I made my way around the state giving talks and fielding questions on that year’s election, I said repeatedly that I personally was against term limits. It was a bad idea, I said. But I also said that it was almost certainly going to pass. The public was fed up with too many legislators in Lansing they felt had served too long, but they couldn’t get rid of them. The aggregate number of years served by legislators in the House and Senate in 1992 was the highest it had ever been in Michigan history. In November of that year, the voters spoke, and what you got was one of the three most draconian term limit laws in the country. The only other states that had language as extreme as Michigan’s were California and Arkansas. For most of the past 25 years, these three states have had the most draconian term limit standards in the U.S. However, in 2012 California’s legislators mustered the political courage to put a proposal on the ballot to spend all 12 years of a lifetime limit (down from the previous 14 total) in either legislative chamber. They could serve all 12 years in the house, or all 12 years in the senate, or the 12 years could be split between the two chambers. In 2014, Arkansas did somewhat the same thing as California had two years earlier, except that Arkansas INCREASED the amount of service from what had been 14 years to 16, but those 16 could be served in either chamber, or in a combination of the two. The “lifetime” ban language stayed in place in both states. In both states, voters approved these amendments.
“What this means is that now Michigan alone has the most draconian state legislative term limits in the entire nation.
“I’ll conclude my making two recommendations: Amend Rep. McBroom’s HJR W, which is modeled on the Arkansas 2014 amendment, to 12 years instead of 16. That would make us just like California, and it would take away the argument term limit advocates might make that you’re trying to extend your maximum time in office (from 14 years to 16). Instead, you could make the argument, “Look, we’re actually being TOUGHER on ourselves by cutting our total service form 14 years to 12, but we’re letting that service be in either chamber, in whatever combination of terms.” I’d keep the lifetime ban language intact, but if you want to gamble you could include the Ohio “sit-out-a-term” language.
“The other recommendation I’d make — and this is a tough one, I know — is to take yourselves out of the game. Don’t give your opponents any ability to claim that you personally are tying to profit from what you’re doing with term limits. Make the effective date of the ballot proposal to be sometime in the future, after you’ve left the Legislature and are prohibited by current law from ever serving again. This should be for future legislatures, not for you.
“What you as a committee decides to do, or what the four caucuses — Democrats and Republicans in both the House and Senate — decide to do is, as you know, a political decision. You know whatever you might want to put on the ballot requires a 2/3 majority vote in each chamber, so it’s got to be bi-partisan. That’s the biggest hurdle of all for this Legislature, but if you’re going to do it, at least give the proposal a chance to be approved by the voters. If you don’t, you’ll probably set back any chance of amending term limits forever.
“Thank you, Madame Chairwoman, and I’ll be glad to answer any questions.”
After two days of hearings, however, no further action was taken by the House Elections Committee, and now the bills are dead. Only one legislator who introduced one of the resolutions — Rep. Barrett — will return for the 99th Michigan Legislature. Farrington, McBroom, and Smiley are term-limited.
There he goes again!
A bill sponsored by that veteran scourge of four-legged predators, state Senator Tom Casperson (R-Escanaba), is moving with lightning speed through the Legislature and could reach Michigan Gov. Rick Snyder’s desk by week’s end.
The measure (SB 1187) would resurrect wolf hunting in Michigan despite a litany of defeats for the gambit by the state’s voters and in the state and federal courts.
SB 1187 lacks bipartisan support. Casperson is relying almost entirely on votes from his fellow majority Republicans in both the House and Senate. Most Democrats in both chambers from the Lower Peninsula oppose it.
But state legislators from the Upper Peninsula of both parties have a long history of trying to exterminate both wolves and coyotes, whether by bounty or hunt.
Democrats like former state Senator Joe Mack (D-Ironwood), back in the 1950s, ’60s and ’70s, fought to keep state-sanctioned bounties on both wolves and coyotes long past the time when wildlife biologists had concluded the practice shouldn’t continue. Mack’s fellow lawmakers from the U.P regardless of party supported him. The bounty on wolves was terminated in 1960, and on coyotes (canis latrans) a couple of decades later, but year-round hunting of “yotes” was given renewed life just this year by the state Dept. of Natural Resources.
When it comes to the grey wolf, however — well, nothing provides a better case study of the ins-and-outs of the Michigan Constitution than what’s happened with canis lupis. And Republican Tom Casperson has become the legislative heir of Joe Mack in his relentless attempts to reinstitute wolf hunts in the U.P.
It all started four years ago when, after the gray wolf was removed from the federal Endangered Species list, the Legislature enacted Casperson’s Public Act 520 of 2012, giving Michigan’s Dept. of Natural Resources the authority to approve a wolf hunt. The DNR dutifully scheduled a limited wolf hunt, in a smattering of Upper Peninsula counties, for the fall of 2013.
But then the Humane Society of the United States (HSUS) made the protection of the grey wolf into its cause celebre. HSUS launched a petition drive to force a referendum on PA 520. Michigan’s current constitution provides that if a number of signatures is collected that equals at least 5% of the total vote cast for governor in the last election (163,410), a statewide vote on the law must be held before it can take effect, and that the act itself is suspended unless or until voters approve the new statute. Thus, PA 520 was held in abeyance until Nov. 14, 2014.
But Casperson had only begun to fight. A 2000 Michigan Court of Appeals decision (Reynolds v Martin) held that the Legislature has the inherent power to enact legislation on any subject regardless of whether there is a pending referendum on the same subject. So Casperson introduced a new bill that would de facto enact most of the provisions of PA 520. The senator also wanted to insert an appropriation into the measure to take advantage of a proviso in the Michigan constitution (Article II, Section 9) saying that a statutory appropriation could not be subject to referendum. However, House Speaker Jase Bolger (R-Albion) was skittish about allowing appropriation language to be part of the bill because of the blowback from the news media and the general public about a similar strategy used by gun rights legislators in 2001 involving concealed carry of weapons (CCW).
So Casperson’s new bill was also enacted without appropriations language, becoming PA 21 of 2013. Again, HSUS reacted fiercely, launching a second petition drive aimed at forcing a referendum on PA 21. Again, HSUS succeeded, and now a second question on the same subject with nearly the same practical effect was ticketed for the general election ballot in November, 2014.
However, before the second referendum could be certified by the state, thus suspending the law pending voter approval, the DNR snuck in a limited hunt in the fall of 2013 in which 23 wolves were killed (a paltry number out of an estimated wolf population of more than 600). Similar hunts were also held in Wisconsin and Minnesota. But would there ever be another hunt in Michigan?
Now a new antagonist entered the fray — the Michigan United Conservation Clubs (MUCC). This powerful sportmen’s organization realized that Michigan is one of only nine states across the nation that has a constitutional provision allowing for indirect statutory initiative. This clause states that if a number of signatures is collected that is equal to at least 8% of the total vote cast for governor in the last previous election (261,456), the issue in question must be transmitted to the Legislature, which has 40 session days to either enact, reject or place an alternative piece of legislation on the ballot for voter approval. If the Legislature fails to act, the measure automatically goes on the statewide ballot in the next general election. Such an initiative does not require the signature of the governor (Snyder had signed both of the referendum bills).
Accordingly, MUCC drafted an initiative that empowered the DNR to be the sole designator of what animals are listed as game species, how they can be hunted, and how wildlife is managed in the state. The proposed statute contained a $1 million appropriation to the DNR; it also allowed for free hunting, trapping and fishing licenses for members of the military (remember this!)
The MUCC coalition turned in approximately 374,000 signatures on May 27, 2014. After the Board of State Canvassers certified them, the re-energized Casperson whipped the initiative through the Legislature, 23-10 in the Senate and 65-53 in the House, with an increasing number of Democrats opposing, not only because they were less pro-gun than their Republican counterparts but because they eschewed still another “end-run” around voters’ wishes and wanted to see what the electorate would decide in November. Bottom line: the MUCC’s initiative became PA 281 of 2014.
Many voters had this entire saga in mind when they went to the polls two years ago. Maybe that’s why, on Nov. 4, 2014, they rejected both of Casperson’s wolf hunt measures, PA 350 as well as PA 21.
Then came an unexpected curve ball, abetted by HSUS — in late December of 2014, a federal district court in the District of Columbia restored the grey wolf to the Endangered Species list. While that ruling is still on appeal, in the meantime wolf hunting cannot resume in Michigan no matter what the state Legislature or the DNR wants to do. That meant no wolf hunt in 2015 or 2016 (none was held in 2014, either, because of the pending referenda).
But the HSUS was leaving nothing to chance. Its next move was to attack the initiated law in state court. This was undertaken in case the wolf is ever removed from the federal Endangered Species list.
In the initial court test, a state Court of Claims judge, Mark Boonstra, rejected the HSUS claims that signers of the initiative petition were misled by circulators. He also brushed aside other constitutional issues raised in the complaint.
Predictably, HSUS appealed to the state Court of Appeals. Shockingly, in a unanimous ruling handed down last month (11/24), a three-judge panel found PA 281 (the MUCC’s initiative) unconstitutional because it violated the “single subject” clause of Article IV, Section 24, of the state Constitution: “No law shall embrace more than one subject, which shall be expressed in its title.”
The appellate panel observed that a provision of PA 281 that allowed for free hunting, trapping and fishing licenses for the military (we told you to remember that!) had nothing whatsoever to do with the law’s stated object of providing for “scientific management of game, fish and wildlife habitat.” The panel concluded that the entire statute must be struck down because it isn’t clear the law would have been approved if that provision had not been included.
Lansing-based Bob LaBrant, senior counsel at the Sterling Corporation, contends this ruling may well be the most significant “single subject” violation since the Michigan Supreme Court struck down the Political Reform Act of 1975 in an advisory opinion because that statute had three subjects (campaign finance, lobbying regulation and government ethics), not one.
Now Casperson, who lost a Congressional bid in the Aug. 2 GOP primary, has moved quickly to correct the “single subject” violation by removing the “free licenses to the military” section. Introduced on Dec. 1, Casperson’s SB 1187 whipped through the Senate on a party-line 27-10 vote (Democrats opposing) on Dec. 8. The bill was quickly transmitted to the House to allow the measure to lay over the required five days (Article IV, Section 26). The House immediately assigned SB 1187 to the House Natural Resources Committee, which reported it out on an 8-1 vote. So the bill is set up for final action during the final week of the lame duck session scheduled to end this coming Thursday, Dec. 15.
Here’s the only remaining question: If and when Casperson’s latest assault on canis lupis gets through both chambers as expected, will Rick Snyder actually sign it? Yes, the governor approved earlier incarnations, but now Snyder knows that wolf hunts have been rejected twice apiece by both voters and the courts, not to mention the executive branch of the federal government.
Could Snyder decide that Casperson & Co. should finally take “No” for an answer?
Does Mark Brewer want his old job back? Could be, and his party could do worse than let him have it.
When longtime Michigan Democratic Party Chairman Brewer was ousted from his post at a 2013 party convention after a record 18 years at the helm, one immediate result was that judicial campaigns are no longer a blood sport in the Great Lakes State.
Brewer’s successor, Lon Johnson, and Johnson’s successor, ex-state Rep. Brandon Dillon, haven’t come close to giving state Supreme Court contests the kind of attention (and passion) that Brewer did. They haven’t done any better than Brewer at winning other offices, either — Michigan Democrats are now in a weaker position than they were when Brewer was in charge.
Brewer, an attorney, invested heavily in the Court immediately after taking office more than two decades ago. In 1996, he helped state Appeals Court Judge Marilyn Jean Kelly beat out another judge, Republican Hilda Gage, to keep the Democrat-nominated majority on the high bench. Then, incumbent justice Patricia Boyle, also a Democrat, stunned court observers in 1998 by declining to run for another term. That opened the door for Maura Corrigan, a Republican judge, to run for and be elected to the open seat, giving the Republicans their first Supreme majority in more than two decades. In fact, other than a brief period in 1976, the GOP hadn’t constituted a majority on the Court since the 1950s.
Sapristi! — one more shocker: another Democratic incumbent justice, Conrad Mallett, decided it just wasn’t as much fun being on the high bench without a Democratic majority, and he resigned after the 1998 election in the middle of his term. That allowed the worst of all outcomes for the Democrats — Gov. John Engler appointed another Republican judge, Robert (Bob) Young, to replace Mallett, giving the GOP a humungous 5-2 edge.
No one was prepared for Brewer’s next move. Beginning in July, 2000, Brewer unleashed a TV air war against three Republican justices, all of whom were on the ballot at the same time running for, respectively, a full eight-year term and two partial-terms. The “famous “Taylor, Markman, and Young, Oh My!” campaign ensued. Counter ads, principally from the Michigan Chamber of Commerce, followed. In total, nearly $15 million combined was spent by all candidates, parties, and interest groups in the year of the Gore v Bush presidential run. The so-called “issue ad,” funded by corporate and labor union dollars, emerged to become a staple of judicial campaigns,and for statewide and legislative offices as well. As it turned out, all three incumbent GOP justices won, so Brewer was denied in his effort to flip the Court to a 5-2 Democratic majority.
But that didn’t stop Brewer. If he couldn’t win judicial contests, he decided he’d just change the state Constitution. In 2007-08, Brewer was the mastermind behind the ballot initiative petition drive, “Reform Michigan Government Now” (RMGN). One of the 34 changes in Brewer’s stealth initiative was a downsizing of the Supreme Court from seven justices to five. The two justices with the least seniority would have their seats abolished — predictably, they would be Republican incumbents Young and Steven Markman. But Brewer’s ploy was challenged by Republican-backed interest groups, and a majority of the Supreme Court, including one Democratic justice, ruled that RMGN! was not a genuine amendment to the state’s basic charter but, rather, a general revision of the Constitution, which could be accomplished only by a Constitutional Convention.
Undeterred, Brewer plunged into the 2008 general election campaign with a vengeance, producing a TV ad in October depicting Chief Justice Cliff Taylor, played by a Taylor look-alike, asleep on the bench during oral argument. The basis for the ad was simply an affidavit Brewer obtained from the mother of a child who died in a house fire. Nobody else, including a vigilant Geoffrey Fieger (the Democrats’ 1998 gubernatorial nominee) who argued the case before the court and disliked Taylor, noticed such slumber. The “Sleeping Judge” ad, coupled with a coordinated campaign to have voters cast their ballots for Barack Obama for President and Diane Hathaway for the Supreme Court results in Taylor’s defeat. The GOP’s edge shrank to 4-3 (although, two years later, Hathaway was forced to resign from the Court after she was sentenced to prison for bank fraud).
Meanwhile, in 2010 renegade Republican Betty Weaver decided not to seek re-election , allowing then-Gov. Jennifer Granholm to replace her with Democrat Alton Davis, a northern Michigan appellate judge. That gave Democrats a brief, five-month majority before Davis was swept out of office by a GOP general election tsunami that re-elected incumbent Bob Young and catapulted new GOP nominee Mary Beth Kelly onto the court, restoring the Republicans’ 4-3 majority before they boosted it again a few months later with Hathaway’s departure.
In 2012, Brewer’s Democrats shrewdly nominated Bridget McCormack, a U-M law professor, to run for an open seat on the Court created by the retirement of Marilyn Kelly, who had reached the constitutional limit of age 70 and couldn’t run again. McCormack finished first among equals, but another Republican also won, meaning the GOP kept its 5-2 margin. Still, McCormack changed the culture of the court — she got along well with all her colleagues, especially the new chief justice, Bob Young.
In 2014, another Democrat, Michael Cavanagh, also hit the age 70 “can’t run again” barrier and was forced to retire after 32 years on the Court. Brewer was gone, but he’d trained his party well — the Dems nominated Richard Bernstein, who toiled in the law firm of his father, Sam, Michigan’s “King of Torts.” Since Bernstein could largely self-finance his campaign, Republicans made no real effort to topple him. Instead, they concentrated on re-electing incumbent Brian Zahra to an eight-year term as well as a new appointee, David Viviano. Everybody got their way, Zahra, Viviano, and Bernstein all won, and Bernstein soon joined McCormack in becoming a collegial member of the court.
This year, Democrats made next to no effort to challenge Viviano for a full eight-year term or another new appointee, Republican Joan Larsen, who had been named by Snyder to fill out the term of Mary Beth Kelly, who had resigned to enter private practice. Instead, the new state chairman, Brandon Dillon, concentrated all his efforts on Hillary Clinton’s presidential bid, two seats in the 1st and 7th Congressional Districts, and an attempt to regain a majority in the state House of Representatives. All three efforts failed.
In the meantime, Mark Brewer suddenly reappeared. First, he ran for the Macomb Co. Board of Commissioners, but got shellacked in the Aug. 2 Dem primary. Rebounding quickly, he led the charge in late summer with a law suit challenging the constitutionality of a new state ban on straight-ticket voting. He picked the right jurist, Democratic federal district judge Gershwin Drain, and got the right verdict — straight-ticket voting stayed in place in the Nov. 8 general election, although it appears that may have backfired on Brewer’s party with the unexpected Donald Trump victory in Michigan that carried numerous Republicans at the local level into office.
Next, Brewer hitched his wagon to Green Party presidential nominee Jill Stein, widely regarded as a surrogate for Democrat Hillary Clinton in her efforts to secure a recount of the presidential vote in Michigan despite Stein’s winning only 1% of the Michigan vote. Again Brewer secured a favorable federal district judge, Mark Goldsmith, and a favorable verdict — Goldsmith ruled at midnight last Sunday that a recount should begin this past Monday, Dec. 5, instead of the two-business days delay written into the election law that would have required the recount not to begin until Tuesday or Wednesday, Dec. 6 or 7. Furthermore, Brewer got the federal 6th Circuit Court of Appeals to uphold Goldsmith’s order on a 2-1 vote (two of the judges were Democratic appointees).
However, in a parallel action in state court, Michigan Attorney General Bill Schuette and lawyers for Trump challenged Stein’s standing to even request a recount on the grounds that her meager 1% of the vote could not possibly overturn the voters’ presidential verdict at the ballot box.
Meanwhile, Brewer has petitioned the state Supreme Court directly, bypassing the Court of Appeals, to allow the recount to proceed. He also filed a motion demanding the recusal of Chief Justice Young and Justice Larsen on the grounds that their names have appeared on a Federalist Society list of conservative, rule-of-law jurists that President-elect Trump has said he might pick from to replace the late Antonin Scalia on the U.S. Supreme Court. Brewer’s tactic appears to have worked — Young and Larsen have announced they will recuse themselves from the ongoing recount deliberations at the high court level.
Brewer’s desired by-pass did not happen, however. The state CoA ruled , 3-0, that any recount was improper and should cease. The Board of State Canvassers voted 3-1 on December 7 that the Secretary of State should halt the recount if and when Goldsmith dissolved his Dec. 4 order. Goldsmith indeed lifted his order later that evening. It seems unlikely that the state Supremes or the 6th Circuit feds are likely to order the recount to resume on appeal, although Brewer is still trying.
Even though Brewer appears to have lost once again, maybe that isn’t the point. He’s a player. He’s back from his exile on a political Elba.
Does Brewer’s re-emergence signal his availability to replace Brandon Dillon as Democratic party chairman? After all, this is what he seems born to be, and do. Even in defeat, only he seems capable of giving his rival Republicans fits. And, if he becomes chairman again, does this also signal that the “Era of Good Feelings” at the Michigan Supreme Court may be drawing to a close?
Remember, though, that Napoleon’s experience was cautionary. After the French emperor’s escape from Elba, he was defeated at Waterloo, followed by permanent exile on St. Helen.
Mass confusion continues to reign over what is happening, or may happen, with respect to a recount of the Nov. 8 election results in Michigan.
Everyone knows Green Party candidate Jill Stein has petitioned for a recount, even though she received only 1% of the vote. Against all odds, she’s winning her battle to get what she’s demanding. Recounts began today in Oakland and Ingham Counties, six more counties are scheduled to begin recounting tomorrow (Tues.), and all the rest of Michigan’s 83 counties are scheduled to follow, including as many as nine as late as Dec. 12.
The recounts are happening because a federal judge in Detroit ruled at midnight last night that they must. Michigan Attorney General Bill Schuette has appealed this edict to the federal 6th Circuit Court of Appeals, but in the meantime the counts have already started in Ingham and Oakland. Schuette has also filed suit in both the state Court of Appeals and state Supreme Court to stop the Michigan recount, and the appellate court has responded by scheduling a hearing for Tuesday (12/6) morning.
Who’s counting, and who isn’t? Here’s where to go to find out the answers (we wish it was a link, but we can’t do it):
Try these, and you’ll know as much as anybody right now. In the meantime, stay tuned for court ruling announcements …
In the wake of her Nov. 8 general election victory, the newest State Representative from the 52nd State House District evidently plans on spending only a single term in the state House before she takes on her next goal — winning election to the state Senate in 2018.
That’s the only way you can explain the missive Donna Lasinski, currently a member of the Ann Arbor school board, sent on Nov. 20 to officials in the 16 Washtenaw Co. townships she will represent for the next two years. The 52nd District is what is considered a “marginal” enclave, with plenty of Republicans and independent voters in it — it’s virtually a 50-50 R/D district, although it’s sent a Democrat to Lansing to represent it for almost all of the past two and a half decades, with the recent exceptions of Republicans Gene DeRossett from 1999-2004 and Mark Ouimet in 2011-12.
But apparently “reaching out” to voters of all persuasions isn’t part of Lasinski’s game plan. Instead, she’s looking ahead to when the seat of term-limited Rebecca Warren (D-Ann Arbor) will be open two years from now. The 18th state Senate district includes most of Washtenaw Co. that Lasinski will NOT be representing for the next two years, including heavily Democratic Ann Arbor and Ypsilanti and their close-in suburbs on the eastern side of the county.
Lasinski could be facing a 2018 Democratic state Senate primary that might include her state House predecessor, Gretchen Driskell (D-Saline), who gave up her seat in the 52nd district at the end of this year to run unsuccessfully for Congress. Or maybe Barbara Fuller, whom Lasinski edged by 337 votes in the Dem primary this past August. Or maybe Yousef Rabhi (D-Ann Arbor), her fellow incoming freshman state rep; or perhaps Ronnie Peterson (D-Ypsilanti), another freshman just elected in the 54th district.
In any event, Lasinski’s email to all township officials in western (and northern) Washtenaw Co. 10 days ago doesn’t seem tailored to appeal to her new constituents in the 52nd. Let’s not say anything more — let Lasinski’s message speak for itself:
“Good morning, ____ Township leaders.
I am writing to share with you a pledge that Washtenaw County Elected Officials (Editor’s Note: all Democrats) are signing onto in order to publicly stand with members of our community who may be feeling marginalized or unsafe in light of recent hateful events that have happened.
This is not a partisan political statement (sic); it is a statement of shared community values for our constituents.
I am asking you to fill out this GOOGLE form by Sunday, Nov. 20, at midnight if you’d like to publicly add your name as a supporter.
If you have any questions or would like more time, please let me know. Thank you for your consideration.
REPRESENTATIVE ELECT – 52ND HOUSE DISTRICT734/997-7265
Full Statement Text:
We, the undersigned Elected Officials of Washtenaw County stand together against hate. We stand with everyone in Washtenaw County, in solidarity with the many diverse identities we all hold. While the following enumeration may not capture every group in our community, we stand in opposition to all hateful words or acts against any and all peoples of our community regardless of the political views they hold.
We stand with American Indian people of Washtenaw County.
We stand with Arab and North African people of Washtenaw County.
We stand with Asian people of Washtenaw County.
We stand with Black people of Washtenaw County.
We stand with Latinx (sic) people of Washtenaw Cunty.
We stand with immigrant and Refugee people of Washtenaw County.
We stand with LBGTQ+ people of Washtenaw county.
We stand with Muslims, Jews and people of all religions in Washtenaw County.
We stand with People with Disabilities of Washtenaw County.
We stand with veterans of Washtenaw County.
We stand with Women and Girls of Washtenaw County.
We pledge to use every power vested in our respective offices to protect the safety and dignity of everyone in this community. We pledge to engage, empower and listen to those who are most vulnerable.
We pledge to do everything in our power to defend this community against any policies, actions, or statements that discriminate against or target any individual or group.
We pledge to do everything in our power to ensure that Washtenaw County is a safe and welcoming community to everyone.
We pledge to stand united.”
It is unknown at this time how many “township leaders” in her new district signed onto Lasinski’s statement.