The ruling may upend Michigan politics heading into the 2020 elections and force some state senators, including top leaders, out of office two years early.
Other incumbents who qualify for the special election could have to run in radically redesigned districts with new voters heading into a high-interest presidential race.
But constitutional experts say applying the state’s term limit rules will almost certainly be sorted out in state court if the federal ruling withstands a planned appeal to the U.S. Supreme Court.
“This is something that would be decided by state authorities, not federal authorities,” said Richard Primus, the Theodore J. St. Antoine Collegiate professor of law at the University of Michigan.
A federal three-judge panel ruled Thursday that legislative and congressional district maps drawn by Michigan’s Republican-led Legislature in 2011 reflect an unconstitutional gerrymander of “historical proportions” that intentionally diluted the power of Democratic voters to help entrench GOP power.
The court ordered new 2020 maps for at least nine congressional districts, 10 state Senate seats and 15 state House seats. Many neighboring districts with shared boundaries would likely need to be redrawn as well.
For incumbent state representatives and congressional members already up for re-election every two years, the ruling means many may have to run in reshaped districts for the chance to represent a different set of voters. For state senators elected to serve four-year terms through 2022, the potential scenarios are more complicated.
Michigan voters in 1992 approved what amounts to the toughest term limits in the country. The constitutional amendment prohibits a person from being elected to the state Senate more than two times, but says nothing about the length of those terms.
“It would seem to me the special election is going to be one of those (two) times,” said Robert Sedler, a constitutional expert and distinguished law professor at Wayne State University Law School. “The provision refers to elections, and not years of service, but that would be up to a state court to decide as a question of state law.”
But Michigan’s term-limits amendment includes a vacancy exception that courts could view as a “reasonable solution” to allow second-term senators to run in the special election to avoid being forced out of office early, Primus said.
The Constitution holds that a person elected or appointed to fill a vacancy in the state Legislature “shall be considered to have been elected to serve one time” if they complete more than one half of a term.
“So the implication is, if you’re elected to serve half a term or less, then it doesn’t count,” Primus said. “One reasonable way to understand the 2020 special election in the relevant districts … is to say the effect of the court order was to declare all those districts vacant.”
Patrick Anderson of the Anderson Economic Group, who wrote the 1992 term limits amendment, said he had not considered the issue but was reviewing the constitutional language for guidance.
“Obviously, no one intended federal judges to stop elected officials from serving in the middle of their term and change the district boundaries,” Anderson said. “This is an extraordinary situation.”
The potential impact of term limits could affect as many as eight state senators who were elected to their second-terms last fall, but it’s not yet clear how many of their districts would need to be withdrawn.
The federal court order requires new boundaries for districts held by Senate Minority Leader Jim Ananich, D-Flint; Sen. Ken Horn, R-Frankenmuth; and Sen. Jim Stamas, the Midland Republican who chairs the powerful Appropriations Committee.
Horn, who is in his third decade of serving in elected office, said he’s not overly concerned about the uncertainty.
“My blood isn’t all ginned up or boiling about this,” he said. “It is what it is.”
Ananich said Thursday he expects more legal wrangling, but vowed Senate Democrats “will run robust races as we’ve always have done” if forced into action next year.
Stamas told The Detroit News he was “disappointed” by the ruling and is asking Senate attorneys “to review what it means to me — but I don’t know at this point.”
Shirkey has already made clear the Senate will appeal the ruling to the U.S. Supreme Court, which is considering gerrymandering cases out of North Carolina and Maryland that could render the state decision moot.
“I’m not completely surprised at the (Michigan) decision,” Horn said. “On its surface, I don’t agree with it necessarily, but I’m not a legal expert, and I’m going to leave that to the professionals to ferret what is going on.”
Potential affected senators
Besides Shirkey, other second-term senators include Sens. Dale Zorn, R-Ida; Curtis Hertel Jr., D-East Lansing; Pete MacGregor, R-Rockford; and Wayne Schmidt, R-Traverse City.
Hertel said he thinks he would be eligible to run again and plans to do so if his term is cut short.
“Three different lawyers could read that and come up with three different conclusions,” Hertel said when asked about the uncertainty over the term limits rules. “If there’s an election for Senate in 2020, my full intention is to be on the ballot and run.”
As for the ruling itself, “the districts are obviously gerrymandered,” Hertel said, “so I certainly agree with that part of it.”
Democratic Secretary of State Jocelyn Benson had attempted to broker a settlement with plaintiffs that would have only required new boundaries for at least 11 state House districts — but not any congressional or state Senate districts.
The federal court rejected the settlement, but Benson had continued to urge the judges against forcing a special election for Senate, citing potential upheaval to the election process.
The court instead ordered an aggressive remedy, ruling that the “constitutional violations in this case are particularly severe” and warrant a special election.
“While senators may be disappointed that their four-year terms will be reduced to two years, the sentiment of the legislators elected under an unconstitutional apportionment plan does not outweigh the constitutional rights of millions of Michiganders to elect their senators under constitutional maps,” wrote U.S. 6th Circuit Court of Appeals Judge Eric Clay, an appointee of Democratic President Bill Clinton.
He was joined in the unanimous decision by Detroit U.S. District Judge Denise Page Hood, who was also appointed by Clinton, and Grand Rapids U.S. District Judge Gordon Quist, an appointee of Republican former President George H.W. Bush.
The court was silent about the state term limits rule.
“The broad principle is that a federal court can issue orders overriding state law in order to protect federal constitutional rights,” Sedler said. But the federal court “doesn’t care” about term limits in this case because they “really have nothing to do with the gerrymandering.”
State litigation over the term limits question could be instigated by second-term lawmakers who want to run again, or are barred from appearing on the ballot by election officials, Primus said.
There is also a “good likelihood” that the federal ruling requiring the special election will be reviewed by U.S. Supreme Court justices, he said. “And if they do,” Primus said, “then it’s possible that none of this will ever come to pass.”