Bill Ballenger and Dennis Denno talk about the ramifications of Trump’s meltdown and the numerous elections in Michigan.
… and, despite a key state legislator’s interest in tweaking them, they’re almost certain to stay that way, at least for the time being.
Why can’t term limits for Michigan lawmakers and other officeholders be altered, extended, or done away with completely? Three reasons, really:
- Nobody dares undertake an effort to get a constitutional amendment on the ballot, because it would take too much time and money with little chance of success even if it’s put before the voters. That means only the Legislature, by a 2/3 majority vote in each chamber, could put such a measure before the electorate. That’s unlikely to happen because …
- Virtually every legislator in Lansing is there for one reason — term limits. All their predecessors were termed out of office, giving the present-day occupants a chance to serve. Moreover, many current lawmakers have championed term limits in their campaigns; to now do an about-face and claim that, since they’ve gotten themselves elected, they’d like to stay longer would be the very definition of rank hypocrisy.
- The easiest way for a political party in the minority to regain a majority is to win open seats when they occur, and nothing creates a greater number of open seats faster than term limits. For example, the only reason state House Democrats, now in a 16-seat hole, have a chance to win control of their chamber this year is because more than 40 seats are open due to term limits, and the vast majority of those are held by Republicans whose successor nominees are exposed to defeat by Democratic challengers. Does a minority party want to “lock in” its opponents in the majority party to lengthy tenures with few vacancies should term limits be extended or rescinded? No way.
Nevertheless, state Rep. Lisa Posthumus Lyons (R-Alto), chair of the state House Elections Committee, contends the time has come for ACTION. The daughter of a former Lieutenant Governor and Senate Majority Leader, Lyons announced recently that before the end of this year’s “lame duck” session of the Legislature she plans to hold two hearings on revising Michigan’s constitutional term limit provisions.
Lyons is term-limited herself after this session and is currently running for Kent County Clerk, which was a political stepping stone for Terri Land, who later was elected Michigan’s Secretary of State. Six House Joint Resolutions dealing with the subject of term limits have been referred to Lyons’s committee.
Michigan was part of a term limits movement that swept across the nation between 1990 and 2000. During that decade, 21 states adopted some form of term limits. Every state that permitted state constitutional amendments to be placed on the ballot by initiative petition adopted state legislative term limits during that decade. No new states have adopted state legislative term limits since 2000. Four of those 21 states that once had term limits have had them thrown out by their state Supreme Courts. Only two states adopted term limits statutorily (not by constitutional amendment); in both those states, term limits have since been repealed by a subsequent legislature.
Today, only 15 states still have state legislative term limits. Michigan was one of those states whose voters approved a constitutional amendment (in 1992) that had been placed on the statewide ballot by initiative petition. In Michigan, this “Proposal B” was adopted by a healthy 58% “Yes” vote.
Michigan’s Proposal B imposed term limits not only on state senators and representatives but on future Michigan Governors, Lieutenant Governors, Secretaries of State, and Attorneys General. Individuals elected to those executive branch offices can serve only for two four-year terms. Filling a vacancy counts as one full term only if the partial term is for more than half of a normal four-year term for that office. Term limits for these statewide offices are a lifetime limit for each office.
Proposal B also attempted to impose term limits on Michigan’s two U.S. Senators and members of the U.S. House of Representatives (Members of Congress). Both U.S. Senators and U.S. Representatives were to be limited under Proposal B to serve no more than 12 years in any 24-year period. However, the U.S. Supreme Court (in the case of U.S. Term Limits v. Thornton, decided in 1995) ruled that a Missouri constitutional amendment similar to Michigan’s was unconstitutional and invalid. The high bench ruled that a state constitution could not impose qualifications for candidates for the U.S. Congress stricter than those imposed on U.S. Senators and U.S. Representatives as specified in the U.S. Constitution. So term limits in Proposal B for federal lawmakers in the Michigan Constitution are unenforceable and invalid.
The greatest impact of term limits in Michigan is on its state legislature. State senators are limited to serving two four-year terms. State representatives are limited to serving three two-year terms. Lawmakers elected to fill vacancies and who serve more than half a full term have that partial term count as one full term for that office. As with the executive branch offices, term limits are a lifetime limit for that office on any lawmaker.
Bob LaBrant of Lansing’s Sterling Corporation has trolled the national term limits landscape. LaBrant has concluded that it’s clear state legislative term limits across the country were NOT created equal. Michigan, he notes, became one of only six states that, between 1990 and 2000, bore the brunt of this “lifetime ban” inequity. Most states with legislative term limits were merely limits on lawmakers serving consecutive terms.
In Ohio, for example, a legislator can serve four two-year terms in the state House. That legislator is then required to “sit out” for four years before s/he can run again for the state House and serve four more two-year terms. Or a termed-out state representative can run and serve two four-year terms in the state Senate and, after completing eight years in the Senate, that senator can then run again for the state House. Such a limit on consecutive terms of office is the norm among states adopting state legislative term limits. “Lifetime bans” on ever serving again in either the House or Senate after a lawmaker is initially “termed-out” are simply not part of the equation. Interestingly, one of the six bills in Lyons’s committee — HJR X, sponsored by state Rep Ed McBroom (R-Vulcan) — would transform Michigan into the Ohio term limit model.
Back in the 1990s, three states had the most draconian state legislative term limits provisions — California, Arkansas, and, as you might expect, Michigan. In all three states, service in the state House was for three two-year terms and, in the state Senate, for two four-year terms. All three states imposed lifetime limits on service in each legislative chamber.
But California and Arkansas have “re-thought” their versions of term limits. Only Michigan has not.
In 2012, California voters (after lawmakers put the proposal on the ballot) amended their constitution to allow a state legislator to spend all 12 years of a lifetime limit (down from the previous 14-year total) in either legislative chamber. All 12 years could be spent in the state Assembly, or all 12 years in the state senate, or the 12 years could be split between the two chambers. Fittingly, Rep. Jeff Farrington (R-Utica) has introduced HJR C to extend term limits in both the House and Senate to 12 years in each chamber. However, Farrington would provide for an expansion to a total of 24 years of combined legislative service rather than being limited to the 12-year total in the new California model.
In 2014, Arkansas voters amended their Constitution similar to California’s 2012 change, but they increased their lifetime limit total from 14 years to 16 years. Under the new amendment, all 16 years can be served in the state House or all 16 years in the state Senate, or the 16 years can be split between the two chambers. Rep. McBroom to the rescue again — his HJR W would change Michigan over to the Arkansas term limit model.
What these two developments mean is that now Michigan ALONE has the most draconian state legislative term limits in the nation.
What California and Arkansas will likely see in the future is that legislators, particularly in the lower chamber, will gain more experience before achieving committee and caucus leadership positions.
Arkansas and California solons will be less likely to chair committees in their very first term in office. Leadership ladders, which were common in Lansing before term limits was imposed, may return. Only after a few terms of serving on a committee and demonstrating knowledge and leadership will legislators receive committee chairmanships. They are also likely to see legislators acquiring specialized expertise on issues that those legislators did not have before they were first elected.
Freshmen legislators will not be out organizing leadership campaigns to run for Speaker at the end of their rookie season. Legislators may be less inclined to plot as aggressively their paths to that next office in attempts to prolong their political careers.
Senior legislators may be more inclined to mentor newer members. Legislators may actually meet and work with lawmakers from across the aisle since legislative service will extend beyond a mere six years. Bipartisan friendships may even become more normal.
The seemingly unquenchable demand to raise campaign dollars for leadership races and their next office may be mitigated. In sum, legislative organization (an oxymoron?), leadership, and the culture itself may change. For lobbyists, developing relationships with individual legislators — not just the leadership — may return with the replacement of the six-year revolving door of constant new state House faces. This would be a reasonable reform for the Michigan legislature and, arguably, for the citizenry as well.
Bear in mind: no state has ever given voter approval to an outright repeal of legislative term limits. Also, current polling shows Michigan voters are not inclined to totally repeal term limits.
Nevertheless, Rep. Charles Smiley (D-Burton) has introduced HJR Q to scuttle term limits not just for legislators (state and federal), but for statewide executive branch officials as well. McBroom has introduced still another measure, HJR V, to repeal term limits only for legislators, keeping intact term limits on statewide officers. Both of these ideas look like non-starters, but the California and Arkansas term limit modifications might serve as a reform model winnable at the ballot box.
As mentioned, a joint resolution must pass by a two-thirds vote in both the House and Senate for a constitutional amendment to be placed on the ballot. In the alternative to legislative action, an initiative petition drive would be required to collect valid signatures equal to at least 10% of the total vote cast for governor in the most recent election (in the neighborhood of 350,000 John Hancocks) to place a constitutional amendment on the November, 2018, statewide ballot.
If there is sufficient bipartisan support to pass a joint resolution during the upcoming lame duck session (between Nov. 8 and the end of this year), the legislature will decide when it would appear on the ballot and when it would take effect, if voters approve it.
Michigan election law provides for three election dates each year — in May, August and November. By year’s end, it’s conceivable this Michigan legislature could place a term limit question on the statewide ballot on any election date in 2017 or 2018 — but don’t count on it.
What happened in the VP debate and what does Trump need to do for his Sunday debate? It’s all in the latest Friday Morning Podcast with Bill Ballenger and Dennis Denno:
Check out the latest Friday Morning Podcast, where Bill Ballenger and Dennis Denno talk about the Clinton/Trump Presidential debate, other presidential debates, and famous debates in Michigan.
It’s a mystery why Michigan Democrats appear so worried that Gov. Rick Snyder’s new TV ads on behalf of state House Republicans might be doing a lot of damage to Dems’ prospects in this year’s general election.
Snyder’s ad campaign ties together kudos for his own performance as the state’s CEO with the candidacies of GOP candidates for the state House, some incumbents and some not. Democrats counter that the ads are subsidized by “dark money,” unaccountable to the news media and general public. Besides, they say, Snyder’s economic record is nowhere near as great as he claims, and he and his administration single-handedly caused the “Flint water crisis.”
In fact, the most recent survey of the popularity of the 50 U.S. governors shows that, thanks to the relentless acrimony heaped on Snyder by his Democratic opposition, Snyder is the fourth most UNpopular governor in America.
So how can pro-Snyder TV ads possibly help Republican candidates running for the state House, where the GOP now holds a 16-seat majority that could evaporate on Nov. 8? More likely, any publicity tying Republican candidates to Snyder will only hurt them.
Morning Consult’s most recent survey of the nation’s governor’s shows that only 33% of Michigan’s registered voters approve of Snyder’s job performance, while 61% disapprove. That’s worse than all but three of the 50 state CEOs — Sam Brownback (R-Kansas), Dan Malloy (D-Conn.), and Chris Christie (R-NJ).
Morning Consult surveyed 71,900 registered voters in all 50 states from early May of this year through early this month. Survey respondents were asked whether they approved or disapproved of their governors’ job performance.
Eight of the 10 least popular governors are Republicans, including two from the Midwest — Illinois Gov. Bruce Rauner, who got the fifth-worst rating in the poll, and Wisconsin Gov. Scott Walker, who ranked 10th worst.
On the other hand, eight of the top 10 MOST popular governors are Republicans as well, including the top three — Dennis Daungaard of South Dakota (74% approval rating), Larry Hogan of Maryland (70%), and Charlie Baker of Massachusetts (also 70%). Hogan and Baker were elected in 2014 in heavily Democratic states.
How about Republican Gov. John Kasich in the neighboring state of Ohio? He’s in the middle of the pack, but with positive numbers. He’s 23rd in popularity, with 57% approving of his job performance, 33% disapproving — the same as California’s Democratic governor, Jerry Brown.
Historically speaking, Snyder may get major credit for taking on Detroit’s bankrupt city government, for the “Grand Bargain” that saved the Detroit Institute of Arts, for championing the building of the Gordie Howe International bridge, and for balancing the state’s books, but he’s still operating under a cloud that he allowed to form because he failed to address the Flint mess early on, and with sufficient urgency.
Whether Snyder’s numbers can improve between now and 2018, when his term ends, depends on the Nov. 8 election results and whether he develops the political acumen in the next two years that he failed to demonstrate in his first six.
Check out the latest Friday Morning Podcast, where we talk about the 1966 Game of the Century and 1966 Michigan politics.
Check out the latest Friday Morning Podcast, where we talk a little Presidential history and Bill Ballenger has a scoop on the Michigan House of Representatives.
Check out the latest edition of the Friday Morning Podcast with The Ballenger Report creator Bill Ballenger. In this edition we talk about straight ticket voting and redistricting, and how it could affect the 2018 elections.
Dick Posthumus might still become Governor of Michigan, but he wouldn’t like the circumstances and the pay isn’t very good, either.
Posthumus, a former state Senate Majority leader and Lieutenant Governor, lost a fairly close race for the state’s top job to Democrat Jennifer Granholm in 2002. He now serves as a senior adviser to the current governor, Rick Snyder.
But Posthumus tops a list of five designated “emergency successors” to Snyder if something catastrophic happens to the incumbent, according to an obscure law enacted in the “bomb-shelter” paranoid 1950s that almost no one knows anything about. More about that later.
The reason all this is worth thinking about is because a new television series, “Designated Survivor,” is scheduled to kick off Sept. 21 starring Kiefer Sutherland.
The plot goes something like this: During a presidential State of the Union Address at the U.S. Capitol, an explosion kills the President, Vice President, Speaker of the House and President Pro Tempore of the Senate and all the members of the cabinet except one. Sutherland plays that one surviving cabinet officer who has been designated not to attend that State of the Union. He is called the “designated survivor” (in the TV pilot Sutherland plays the Secretary of Housing & Urban Development). Despite that cataclysmic event, government would still go on. Someone (Sutherland, in this case) would be in charge.
The post-World War II Republican majority Congress, elected in 1946 — the same Congress that also submitted to the states for ratification a presidential term limits resolution which later became the 22nd Amendment — enacted the Presidential Succession Act of 1947. Before the 1947 law, the House Speaker and President Pro Tem had not been in the line of presidential succession since 1886. In 1886, cabinet secretaries were placed in line of succession after the VP in the order that their cabinet departments had been created. But the new 1947 law changed that. It restored the Congressional leadership after the Vice President, to be followed by Secretary of State, Secretary of the Treasury and Secretary of Defense (a new department that had just been created to replace the old Secretary of War and the Navy department), and THEN the remainder of the cabinet secretaries, with seniority based on the order their departments had been created over time.
Bob LaBrant, author and senior counsel with the Sterling Corporation in Lansing, observes that Michigan has its own constitutional order of gubernatorial succession in Article V, Section 26: Lieutenant Governor (LG), the elected Secretary of State (SoS), and the elected Attorney General (A.G.).
This line of succession applies not only if the governor dies, resigns, or is convicted and removed on impeachment charges, but also if the governor becomes disabled or is merely absent from the state. For example, when former Gov. Granholm and LG John Cherry were out of the state attending a Democratic National Convention anytime between 2003 and 2011, Secretary of State Terri Lynn Land, a Republican, became Acting Governor for a few days.
Stories are legendary (and perhaps apocryphal) about how Democratic Lt. Gov. T. John Lesinski (1961-65) commanded the state police to provide him with Gov. George Romney’s car when Romney was at some out-of-state speaking engagement. Lesinski, as Acting Governor, would puff away on his favorite cigar in the back of the limo, hoping to provoke a response from Romney, a strict Mormon who didn’t drink or smoke, when the Republican incumbent returned to Michigan.
Article V, Section 26, of Michigan’s Constitution has parallels on the issue of gubernatorial disability to the 25th Amendment to the U.S. Constitution ratified in 1967. The inability of the governor to perform his or her duties is to be determined by a majority of the Supreme Court after receiving a joint request from the House Speaker and Senate Pro Tem. The state Supreme Court on its own initiative can determine if, or when, the inability ceases.
The 25th Amendment also provided the means for Gerald Ford to eventually become President by allowing President Richard Nixon to appoint him to fill the vacancy created when Vice President (VP) Spiro Agnew resigned as part of a plea deal following a bribery indictment in 1973 (he was later convicted). Under the 25tth Amendment, the Ford VP nomination required confirmation votes in both the House and Senate. When Nixon resigned the presidency in 1974, VP Ford became President.
But no Michigan Constitution (including the current one) has ever made any provision for filling a vacancy in the office of Lieutenant Governor. The last time LG was vacant (1969-71) was when William Milliken became Governor after George Romney resigned to become Secretary of Housing and Urban Development (HUD) in the new Nixon Administration.
In 1963, the Michigan legislature did enact a law permitting the governor to appoint a LG to fill a vacancy with the advice and consent of the Senate. That law was later amended to permit the Senate, by resolution with a record roll call vote, to appoint an acting LG of the same party as the governor (PA 8 of 1969). It was under these circumstances that Senate President Tom Schweigert (R-Petoskey) was named acting LG by the Senate although there was no constitutional basis for doing so. If Milliken had resigned the governorship at that time, Secretary of State James Hare, a Democrat, would have become Governor, not Schweigert. In two A.G. opinions that followed, Democrat Frank Kelley said those statutes did not cure the deficiency and that there is no authority to fill a vacancy for LG.
The only governor to die in office was Republican Frank Fitzgerald., who was Michigan’s Grover Cleveland. Fitzgerald, like President Cleveland, was the only chief executive to serve non-consecutive terms, being elected in 1934, losing in 1936, and then reclaiming the office from the man who had beaten him two years earlier, Frank Murphy, in 1938. But then Fitzgerald died only two and a half months into his second term. He was succeeded by a SUPER Grover Cleveland — Luren D. Dickinson, who had just been elected to his SEVENTH non-consecutive two-year term as LG in 1938 after two earlier stints in the office (1915-21 and 1927-33). At age 79, Dickinson became the oldest man ever to serve as Michigan Governor, but he couldn’t win a full term on his own in 1940, being defeated by Democrat Murray Van Wagoner.
After losing the 1940 general election, Dickinson “appointed” Mathilda Dodge Wilson, an heiress to an automobile fortune, to become the first female LG. She “served” only about six weeks before their terms jointly ended, and there is considerable legal doubt that her appointment by Dickinson was legal.
There is no doubt, however, that a governor can fill vacancies in the offices of Secretary of State and Attorney General. No confirmation vote is required. That’s how Frank Kelley became A.G., eventually serving a national record 37 years in the office. Kelley was appointed in late 1961 by Gov. John Swainson to replace Paul Adams when the latter resigned to accept a Swainson appointment to the state Supreme Court.
State Senator Steve Bieda (D-Warren) wants to clean up the whole LG mess. In the current session of the 98th Michigan Legislature, Bieda has introduced two Senate Joint resolutions to amend the 1963 Michigan Constitution to provide for filling a vacancy in the office of LG. To place that question on the ballot for voter approval requires a 2/3 majority in each legislative chamber. No hearings have been held and no votes taken on either resolution. This week is the deadline for the Legislature to place any constitutional amendments on the Nov. 8 statewide ballot.
Bieda’s SJR P would have the governor call a special election to fill a LG vacancy. Such an amendment could possibly restore the T. John Lesinski experience with a LG of one party and a governor of the other. Accordingly, it will never get a vote in a legislature controlled by Republicans, who wrote the current Constitution getting rid of the historic “split” possibility. Besides, with a Republican governor ensconsed, why take a chance on an election that might produce a Democratic LG?
Bieda’s other resolution, SJR Q, is far more sound. It provides that, in the event of a vacancy, the governor would nominate a LG who would take office upon confirmation by a majority vote in both the state House and Senate, a requirement missing in Article V, Section 22, of the state Constitution that provides for filling vacancies in the offices of SoS and A.G.
Finally, let’s look at something few know about. Back in 1959 at the height of the Cold War, when it was common for students to do “duck and cover” drills in preparation for a possible nuclear attack on Michigan, the GOP-dominated Legislature passed and Democratic Gov. G. Mennen Williams signed into law PA 202 of 1959, the Emergency Interim Succession Act. This law provides that the governor, SoS, and A.G. each designate five people to assume the duties of their offices and serve as emergency successors should a disaster, enemy attack or civil disorder prevent the exercise and discharge of their duties by the lawful incumbent(s). However, only the five selected by the governor may serve as governor (MCL 31.4). If you’re on the “List of Five” for SoS or A.G., you can take over only that office as an emergency interim successor, but not governor.
This statute also provides that the Senate President Pro-Tem and the Speaker of the House, in that order, should follow LG, SoS, and A.G. to become Acting Governor as a result of a catastrophic emergency.
Using that scenario, if a disaster killed the governor, LG, SoS, A.G., Senate Pro-Tem and the House Speaker, the first person on Gov. Snyder’s list would become Acting Governor, followed by the remaining four, in order, if anything should happen to #1.
Who IS #1? Dick Posthumus. The other four on the “Doomsday List,” although unelected, could become Michigan’s acting governor — #2, Col. Kriste Etue, Director of the State Police; #3, Nick Khouri, State Treasurer; #4, Keith Creagh, Director of the Dept. of Natural Resources; and #5, Nick Lyon, Director of Health & Human Services.
Gov. Snyder’s list includes three new names since earlier lists he submitted to the Office of the Great Seal — Etue, Khouri and Lyon, who replaced former DHHS director Maura Corrigan, former Dept. of Environmental Quality Director Dan Wyant, and former Dept. of Licensing & Regulatory Affairs Director Steve Hilfinger.
Dick Posthumus gets no extra pay as Acting Governor if he is needed. The Act says any emergency interim successor called upon to exercise the powers and duties of the office shall receive no additional compensation except for his or her necessary and actual expenses.
Under the Act, the Legislature (if there is one) may terminate the authority of emergency interim successor at any time. An election to fill the vacancy shall be held within “one year” of the disaster which caused the emergency interim successor to become Acting Governor. Any disputes arising under PA 202 of 1959 shall be determined by whoever is exercising the powers and duties of Governor. The chief justice of the Supreme Court (assuming there still is one) shall determine all disputes regarding the office of Governor.
Curious for more? Who would assume the duties of SoS if something happened to her and there was nobody above her in office to make an appointment to fill the vacancy she left? SoS Ruth Johnson’s list runs as follows: #1 Michael J. Senyko, Chief of Staff; #2, Rose M. Jarois, Director of Department Services Administration; #3, Michael L. Wartella, Director of Customer Service Administration; #4, William R. Kordenbrock, Director of Legal Services Administration; and #5, Christopher M. Thomas, Director of Elections.
How about the same for Attorney General? A.G. Bill Schuette has designated #1, Carol Isaacs, Chief Deputy Attorney General; #2, Matthew J. Schneider, Chief Legal Counsel; #3, Aaron Lindstrom, Solicitor General; #4, B. Eric Restuccia, Assistant Solicitor General; and #5, Denise Barton, Practice Group Manager.
The Michigan Republican Party has just lost three straight HUGE court decisions on straight-ticket voting (STV), and it’s primed to lose a fourth next week in the U.S. Supreme Court.
Should straight-ticket voting be allowed to continue in Michigan, where it’s been in place for the past 125 years? No, says the Republican-controlled Michigan Legislature (with Republican Gov. Rick Snyder’s consent), according to a new law passed in late 2015. Yes, for the time being at least, say federal judges on two different courts — we’ll decide later whether maybe it can be abolished come 2018.
Why is this important? Because the Michigan GOP is convinced it’s been victimized by STV over a number of elections in so-called “down-ballot” races as a result of a large percentage of Democratic voters casting robotic “one party fits all” votes by checking a single box at the top of the ballot, meaning that that their votes go to ALL the candidates of the political party whose nominee is at the top (Barack Obama? Hillary Clinton?).
This year, that would include not just candidates for, say, the University of Michigan Board of Regents but also countywide and county commissioner offices and township offices as well. Republicans, on the other hand, believe voters should be intelligent and informed enough to make decisions on each and every office individually on the ballot and should be willing to work their way down the bedsheet, checking off their preferences for each and every partisan office. Forty other states agree with the Republican perspective, but that doesn’t seem to be what’s at issue here.
Instead, what really counts is whether a Hillary Clinton blowout win in Michigan on Nov. 8 might drag down GOP candidates in “down-ballot” races as well, even in districts gerrymandered to favor Republicans. That’s much more likely to happen if STV is in place than if it isn’t, so the thinking goes.
Which brings us to the next thing Republicans have to worry about — those gerrymandered districts. Are they guaranteed to last through the end of this decade, if not beyond? Maybe not, if federal courts make certain decisions. In fact, that’s what Democrats, in Michigan as well as nationally, seem to be banking on. They believe that events are converging in their favor for a political breakthrough that could put them back in charge of Congressional and state legislative reapportionment in 2021.
Let’s put this discussion in some perspective:
Former U.S. Rep. Mark Schauer (D-Battle Creek), the Dems’ 2014 gubernatorial nominee, spoke recently (on a MIRSNEWS podcast) about the “Advantage 2020” program he’s directing for the Democratic Legislative Campaign Committee, a national group whose goal is to win state House and Senate seats and governorships nationally so that Democrats are positioned to control “drawing the lines” for new Congressional and legislative district maps in 2021-22 following the 2020 census. Absent total control of the governor’s office, state House and Senate in each state, Schauer wants Dems to at least be able to deadlock the process by controlling a minimum of one chamber or the governorship in order to throw 2021 redistricting in a particular state into the courts.
Schauer was asked whether he expected a ballot question to create an Independent Redistricting Commission (IRC) to be on the Michigan ballot in 2018 or 2020. He punted, claiming that all he was responsible for was trying to win as many legislative seats as he could over the next three election cycles. Schauer pointed out that, outside of Michigan, only about half the states allow initiatives to amend state constitutions by collecting petition signatures to place an IRC proposal on the ballot.
What has never been adequately explained is why prominent Democrats or organized labor or the non-profits of the professional “reform” industry (Common Cause, the Joyce Foundation, the Michigan Campaign Finance Network and others) simply walked away from funding a petition drive to place an IRC proposal on the Michigan ballot in 2016, a high voter turnout presidential year when such a proposal might have fared well with voters. In fact, one of the Dems’ allies — the League of Women Voters — held redistricting reform workshops all across the state a year ago. The left-leaning Detroit Free Press and Michigan Public Radio’s Jack Lessenberry could barely contain their enthusiasm for such an amendment. Public opinion on the issue of redistricting and gerrymandering is at a peak in 2016 because of last year’s U.S. Supreme Court decision (on a 5-4 vote) in Arizona State Legislature v. Arizona IRC.
The answer may be that Democrats and labor may be gun shy about putting all their eggs into a “one ballot question” basket. After all, they devoted over a million dollars to try to get “Reform Michigan Government Now!” on the ballot in 2008, only to see their thinly-disguised rewrite of Michigan’s Constitution, including changes in the redistricting process, blocked from the ballot by state courts. Then, Big Labor qualified two proposals for the 2012 ballot, one enshrining collective bargaining rights in the Constitution, the other giving public employee status to home healthcare workers by allowing the SEIU to organize them as dues-paying union members. Despite spending several million dollars, the effort backfired when both proposals were soundly defeated by the voters and, in retribution, the GOP-controlled Legislature enacted Right to Work statutes in the 2012 lame duck session (with Republican Gov. Snyder signing the bills).
Or it could be that Democrats/Big Labor/Reformers think there now may be a cheaper and easier way to achieve their goals — in the federal courts.
It’s easy to see why Michigan Democrats are frustrated. Despite their success in statewide presidential and U.S. Senate elections, where they have won 14 of 15 contests since 1988, Dems have generally been in the political wilderness in Michigan for more than three decades.
Democrats have held total control over both chambers of the state Legislature for only one year since the 1982 election — 34 years ago. A Democrat has been in the governor’s office only 16 of the past 54 years. Republicans have won statewide Secretary of State and Attorney General elections in 10 of the last 12 elections. These are offices that Democrats had swept for four straight decades between 1954 and 1994. Supreme Court? Republican justices have controlled it for all but five months during the past 18 years.
The Democrats’ best chance to begin turning this nightmare scenario around is to win back the state House this year by picking up nine seats. All House Republicans who were elected in the 2010 GOP wave (a 20-seat gain) are being rotated out of office at the end of this year because of term limits, so there are plenty of open seats in marginal districts ripe for the picking if Dems can ride a Hillary avalanche.
Since 1960, Michigan has generally followed a pattern of the non-incumbent party winning the governor’s office when the contest is open — Democrat James Blanchard after Republicans Romney-Milliken; Democrat Jennifer Granholm after Republican John Engler; and Republican Rick Snyder after Granholm. A Democrat — whether it’s U.S. Rep. Dan Kildee or someone else — may well be the favorite in 2018 to beat whomever the Republican nominee turns out to be.
That leaves the state Senate and what to do about the Michigan Supreme Court as the next puzzle for the Democrats to solve.
In the Senate, Republicans enjoy a 27-11 super majority. Even though 19 Republican incumbents will be termed out in 2018, it’s hard to imagine that Dems could capture eight or nine of those districts in a single election in order to organize the body in 2019, especially given the map that was drawn in 2011.
But what about a NEW Senate map? The answer may be provided by another state. A potentially landmark case, Whitford v. Gill, will soon be decided. This lawsuit tests whether the 2011 Wisconsin state Assembly district map is so partisan a gerrymander that it should be thrown out for violating the 14th Amendment to the U.S. Constitution.
A four-day trial has already been held in Madison, the Wisconsin capital, before a three-judge federal panel this past May 24-27 (interestingly, two of the three judges were appointed by Republican presidents, but that hasn’t stopped them from seeming to sympathize with the Democratic plaintiffs).
This Wisconsin case attempts to establish a “manageable standard” with a measurement brought before the Court called an “efficiency gap.” A University of Chicago professor, Nicholas Stephanopoulos, helped to create the new metric. An “efficiency gap” is simply the difference between the party’s respective “wasted” votes in an election, divided by the total number of votes cast. Wasted votes are defined as ballots that don’t contribute to victory for candidates, and they come in two forms — 1) Lost votes cast for candidates who are defeated; and 2) Surplus votes cast for winning candidates but in excess of what is needed to prevail. According to Stephanopoulos’s metric, a political party can be accused of gerrymandering when it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing an “efficiency gap” that is too large.
Wisconsin Democrats believe the courts can use the “efficiency gap” calculation in the same way the courts currently look at population disparities between districts. For example, state legislative population differences under 10% are presumed to be valid. Population differences over 10%, however, shift the burden to the state or federal government to justify the reasons for the population disparity between districts.
Wisconsin Democrats are asking the three-judge panel to establish an “efficiency gap” standard. The current Wisconsin Assembly plan had a pro-Republican “efficiency gap” of 13% in 2012 and 10% in 2014. The Wisconsin plaintiffs want the judges to establish a standard wherein a wasted vote score under a certain percentage results in no finding of partisan gerrymandering. However, a wasted vote score over a certain percentage shifts the burden of justifying those wasted votes to the State, which must show that it was trying to comply with the Voting Rights Act or to draw “compact” districts. If the State cannot justify the higher wasted vote score, the Court would make a finding of an unconstitutional partisan gerrymander.
In the Wisconsin litigation, the Democratic plaintiffs introduced evidence during the trial to show both “discriminatory intent” and “discriminatory effect.” Therefore, they claim, there was no reasonable justification for the 2011 state Assembly district plan. It is in proving discriminatory effect that past plaintiffs have failed to convince the U.S. Supreme Court, in all previous cases that have come before it, that the Court is being asked to review an unconstitutional partisan gerrymander.
A decision by the Wisconsin federal panel could come this month. Either way the panel rules, the case is on a fast track for review by the U.S. Supreme Court during the high bench’s upcoming 2016-2017 term beginning October 3. With a three-judge federal panel, rulings go directly to U.S. Supreme Court, bypassing the Circuit Court of Appeals.
A decision by the U.S. Supremes by late June of next year that adopts the efficiency gap analysis as a workable standard to prove a partisan gerrymander would allow Michigan plaintiffs to file a similar claim in federal court in Detroit against Michigan’s 2011 state Senate plan, where Democrats have enjoyed favorable court rulings on public body ballot question communications, union PAC payroll deduction, and straight party voting. They might even get really lucky and draw District Judge Gershwin Drain, appointed by President Barack Obama.
With a 2017 U.S.Supreme Court ruling as precedent, a lawsuit challenging the 2011 state Senate district plan could lead to a redrawing of Michigan’s 38 state Senate districts in time for 2018 elections either by the Legislature or, if it deadlocks, the court itself.
This is all dependent on the U.S. Supreme Court adopting the efficiency gap analysis used in the Wisconsin Assembly case, says Bob LaBrant, who has long been Michigan’s top political legal historian.
LaBrant points out that Justice Anthony Kennedy has been looking for a workable partisan gerrymandering standard since the Court’s (5-4) decision in Veith v. Jubelirer (in 2004). Although Kennedy did not find an unconstitutional gerrymander in that case, he did not foreclose the possibility that judicially manageable standards for gerrymandering could be developed in future cases brought to the Court. With or without Kennedy’s vote, a replacement for the late Justice Antonin Scalia (perhaps Merrick Garland, who is now closing in on Louis Brandeis’s record for number of days since nominated without a U.S. Senate confirmation vote) almost certainly would be a fifth vote for adopting the efficiency gap as a workable standard to prove a partisan gerrymander if Hillary Clinton is elected president.
Michigan’s current state Senate districts fail the efficiency gap analysis used in the Wisconsin litigation. Democrats in 2014 received just 11 seats in the Michigan Senate (29% of all seats) despite receiving 49% of all votes cast for state senator in the 38 districts across the state.
In 2012 and 2014, Michigan’s state House maps also failed the efficiency gap metric used in Wisconsin. However, it should be noted that Michigan Democrats are now saying that they can win majority control of the state House under the current House map. So, if they do gain control, do they really want the map thrown out and a new election held?
It could make for an interesting lawsuit, undoubtedly with former Michigan Democratic Party Chairman Mark Brewer at the center of it. Brewer may have lost his quest for a seat on the Macomb Co. Board of Commissioners in the August 2 Democratic primary, but he’s still a force in state politics. It was Brewer who filed the lawsuit in federal district court that led to Judge Drain’s shocking injunction against allowing Michigan’s new ban on straight ticket voting to be used this year, pending a final judgment. Brewer also spearheaded the petition drive that led to the 2002 referendum that overturned an earlier attempt by the Michigan GOP to terminate STV, a vote cited by Drain and by the U.S. Sixth Circuit Court of Appeals in allowing Drain’s injunction suspending the ban to stand.
Brewer was the longest-serving Democratic chairman in the nation (and the longest-serving of either party in Michigan history) before he was muscled aside by Hillary Clinton acolytes (and others) in 2013. He may have been a polarizing figure as chairman, but it’s difficult to argue that anyone else could have been more effective (Butch Hollowell, are you listening?), or that either of his successors have been an improvement.
In fact, Brewer has done more to help his fellow Michigan Democrats since 2013 than anyone else in his party. Republicans should be very worried that he’ll do even more in the next couple of years — at their expense.