And a Little Update on Lame Duck
An exclusive interview with Trump atty Eric Doster. And what’s going on with Ronna Romney McDaniel for RNC Chair?
And a Little Update on Lame Duck
An exclusive interview with Trump atty Eric Doster. And what’s going on with Ronna Romney McDaniel for RNC Chair?
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?
The MI recount is another Mark Brewer v. Bill Schuette battle. Two from MI (Ben Carson and Betsy DeVos) are nominated to be in Trump’s cabinet. What else is going on in MI–it’s all in the latest Friday Morning Podcast, with Bill Ballenger and Dennis Denno.
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 …
What’s the latest with the potential Presidential recount in Michigan? And what might happen in Michigan’s lame duck session of the legislature? Find it all in the latest edition of the Friday Morning Podcast, with Bill Ballenger and Dennis Denno.
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.
The Board of State Canvassers has certified Republican Donald Trump’s victory over Democrat Hillary Clinton by a margin of some 10,700 votes in the Nov. 8, 2016 general election. Libertarian Gary Johnson and Green Party nominee Jill Stein trailed well behind, with some 5% of the vote between them.
Now Jill Stein claims she’s raised millions of dollars from throughout the USA to pay for a challenge of the Michigan results. She says she’ll request a recount. Very quickly, here’s the likely scenario:
— Former Michigan Democratic Party Chairman Mark Brewer, who represented Stein before the Board of State Canvassers meeting on Monday, Nov. 28, says Stein will file her recount request by Wednesday, Nov. 30.
— The State of Michigan has no basis to unilaterally deny Stein’s request, regardless of how unlikely it might be that a recount would find that the Nov. 8 certified results were wrong and that Trump was not the winner. The Board has delegated any recount responsibility to Secretary of State Ruth Johnson. If Stein meets the recount cost up estimated at nearly $800,000 up front, Johnson is prepared to launch a recount as early as this Friday, Dec. 2, and continue until it’s completed unless ordered by a court decision to stop.
— However, Trump could challenge Stein’s request for a recount, assuming that she makes the deposit of money required. He could do it to Johnson or the State Board, or in court, or both. If he does, either Johnson or the Board of State Canvassers could reschedule an emergency meeting to deal with Trump’s challenge. The Board consists of four members, two ostensible Republicans and two ostensible Democrats. As most Michigan political observers know, these four often split evenly, 2-2, on highly political decisions. It’s likely they will in this instance, too. If they do, tie goes to Stein — the Republican canvassers need three votes to uphold Trump’s argument. But it doesn’t really matter who wins at the Board level (or with Johnson) — the loser will almost certainly go to the courts to appeal the decision.
— How long might this drag out? The Electoral College meets Dec. 19. Will the election controversy in Michigan be resolved by then? (we won’t speculate about Wisconsin and Pennsylvania, where much the same scenario is playing out). Michigan election officials are ransacking federal statutes to see if there is a Dec. 13 deadline for completing a recount — six days before the election. It really doesn’t make any difference — state election officials think they can get the job done well before that date unless their efforts are halted by court fiat.
— What happens if this imbroglio drags out for so long that the Dec. 19 deadline can’t be met? The U.S. Supreme Court might well be required to step in, as it did back in 2000. Alternatively, the whole shootin’-match could end up in the U.S. House of Representatives. Given the heavy GOP majority in Congress, that would be good news for Donald Trump.
In the meantime, Michigan election officials estimate that the recount Stein is demanding will likely cost well over $1 million, and that any extra costs above the $125 per precinct stipend authorized by state law will likely have to be borne by Michigan’s 83 counties.
That’s not likely to make local governments very happy with Stein, the Clinton campaign whose lawyers are abetting Stein’s effort, or Michigan Democrats who are in full view under the whip of ex-party chief Brewer.
In a major victory for those who believe it must be up to the courts to rein in reapportionment plans that give an unfair advantage to one political party or another, a three-judge federal panel of judges ruled last week (Nov. 21) that Assembly districts in the Wisconsin legislature, drawn up by majority Republicans five years ago, constitute an unconstitutional partisan gerrymander.
This is the first time ever that a federal court has found partisan gerrymandering to be unconstitutional.
In a 2-1 split decision in a case called Whitford v Gill, the Wisconsin panel held that GOP lawmakers enacted a redistricting plan for the Assembly (in Michigan, this would be the state House of Representatives) that systemically diluted the voting strength of Democratic voters statewide.
This redistricting law (known as Act 43) was intended to impede for a decade the ability of Democrats to translate their votes into legislative seats. Act 43 had an immediate effect: in 2012, Republicans received only 48.6% of the aggregate statewide vote for Assembly districts, but they won 60 of the 99 seats up for election. In 2014, GOP Assembly candidates received an 52% of the aggregate vote (a majority, to be sure), but that translated into a whopping 63 of the 99 seats. The panel ruled that these results are “not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander.”
Interestingly, Republicans can’t protest this verdict as the result of a “bad draw’ of judges with Democratic backgrounds. Two of the three judges were appointed by Republican presidents (Ronald Reagan and George W. Bush) and one by a Democrat (Jimmy Carter). Only the Bush appointee dissented.
Hope for the Wisconsin GOP lies in the fact that the two judges who found for the plaintiffs did not provide for an immediate remedy. Instead, the panel directed the parties to file briefs within the next 30 days (in other words, by Christmas) to address the remedial portion of the case. That remedy might be a remand back to the Legislature to enact a new plan , or the appointment of “special master” to draw a plan for the panel to adopt and order into effect.
The Wisconsin Attorney General (a Republican) has promised an appeal to the U.S. Supreme Court. How quickly that appeal might be taken up by the high bench could have an impact on Michigan’s 2018 state legislative elections where candidates for 110 state House seats and 38 for the state Senate will be on the ballot. If the U.S. Supremes should schedule an oral argument in Whitford v Gill by next April, it could be possible for a decision from the Court by the end of June, 2017. That would allow for a similar three-judge panel in Michigan to follow the U.S. Supreme Court ruling and act before the 2018 candidate filing deadline.
In Wisconsin, the Democrat-backed plaintiffs argued their case by creating a formula called the “efficiency gap,” which showed mathematically that the 2011 Wisconsin remap minimized the strength of Democratic votes. The formula divides the number of “wasted votes” — either unnecessarily cast for the winning party or all votes cast for the losing party — by the total number of votes in the election. Statisticians calculated Republicans had an “efficiency gap” of between 11% and 13%. The plaintiff’s “expert witnesses” argued that any gap over 7% constitutes an unconstitutional gerrymander.
In dissent, the Bush-appointed judge argued that the plaintiffs did not even attempt to argue that Act 43 violates traditional redistricting principles, i.e., contiguity, compactness, and respect for political subdivisions). On that basis alone, the judges should have entered a judgment in favor of the Republican plan, he claimed. The dissent noted that there were no allegations of unusually-shaped districts that are traditional hallmarks in gerrymandering cases. The dissenting judge skewered the “efficiency gap” argument as little more than an enshrinement of a phantom constitutional right of proportional representation that presupposes that voters are casting ballots for a statewide party rather than individual candidates. Furthermore, the “efficiency gap” calculation does not adequately account for Wisconsin’s political geography which naturally “packs” large numbers of Democrats into urban areas like Milwaukee and Madison, resulting in tens of thousands of “wasted” votes in inevitable landslide victories for Assembly candidates.
Unlike most other federal cases, any appeal of a ruling by a three-judge panel does not go to the federal circuit court of appeals. Rather, it goes directly to the U.S. Supreme Court, which can either affirm the judgment, or schedule the case for full briefing and discussion, or not take it up at all, in which case the lower court’s decision would stand ( at least for the time being).
So, what might the Supreme Court do? With President Obama’s nomination of Merrick Garland (to replace the late Antonin Scalia) DOA, President-elect Donald Trump is primed to nominate someone to fill the Scalia vacancy and restore the court to a full nine members — five appointed by Republican presidents, four by Democrats.
However, Reagan appointee Anthony Kennedy appears likely will be the key to the outcome of the Wisconsin litigation, not the Scalia replacement appointed by Trump. The reason is that the four Democrats on the court — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — are likely to be “locked in” as supporters of the “efficiency gap” argument advanced by the Wisconsin plaintiffs. Only John Roberts, Samuel Alito, Clarence Thomas and the Trump appointee can be considered likely opponents.
Kennedy, however, is widely viewed as the “swing” vote on the high bench in all major cases — he may have voted in favor of Citizens United, but he also voted with the four Democratic appointees over the past two Supreme Court terms on same sex marriage, abortion, affirmative action, and whether independent redistricting commissions can be permitted to perform Congressional reapportionment rather than state legislatures. In 2004, Kennedy voted somewhat reluctantly not to find partisan gerrymandering in the Vieth v Jubelirer case, but, in his opinion concurring with the majority ruling written by Republican-appointed justices, he said that if a “manageable standard’ were to be developed in a future case, he might rule differently. The Wisconsin plaintiffs are banking on a finding by Kennedy that the “efficiency gap” is just such a standard.
If Kennedy, now 80 years of age (the second-oldest justice on the court), gets an opportunity to opine on the Wisconsin ruling and affirms it, Michigan’s 2011 reapportionment plans (for the U.S. House and both chambers of the state legislature) could similarly fail an “efficiency gap” analysis. We can expect Michigan Democrats to file a law suit similar to Whitford v Gill seeking to scrap Michigan’s current maps and demanding that new maps be drawn. That could happen either before the U.S. Supreme Court might rule on the Wisconsin litigation, or after it has done so.
Indeed, a “nuclear” decision by the high bench next June that goes against the Wisconsin GOP might result in Michigan Republicans witnessing the shredding of their 2011 maps with no recourse.
For more on the Whitford case and its possible impact on Michigan’s redistricting future, see the Sept. 2, 2016, online article in The Ballenger Report, with commentary by legal/judicial guru Bob LaBrant of Lansing’s Sterling Corporation.
Betsy DeVos for Ed Secretary; an update on the MI Legislature, and potential redistricting reform in MI. All in the latest Friday Morning Podcast.