REDISTRICTING COMMISSIONER TURMOIL AND QUESTION OF WHETHER
MICHIGAN MAPS VIOLATE THE FEDERAL VOTING RIGHTS ACT (VRA)
The final weeks of the U.S. Supreme Court’s 2022-2023 term have yielded a decision that has sparked not just one but TWO potential maelstroms involving the Michigan Independent Citizens Redistricting Commission (MICRC).
First, the federal high bench, in a close 5-4 vote, unexpectedly held that the Alabama Congressional plan that was in place for the 2022 election violated Section 2 of the federal Voting Rights Act of 1965 (VRA). The Supremes ruled that Alabama must adopt a plan for 2024 that contains two districts with a majority of racial minorities instead of just one. Right now, 27% of Alabama’s population is African-American, yet only one of its seven CDs (about 14%) is majority-minority.
The Court also held that Louisiana’s Congressional district map must similarly be revised to create two majority-minority districts instead of one. About one-third of Louisiana’s population is Black, but a disproportionate number (five) of its six CDs have a non-Black majority.
The verdict was viewed as a cause for celebration by most Democratic, liberal and progressive observers and activists around the country. In Michigan, however, the result could well produce an outcome they won’t like.
That’s because the court’s decision calls into question the Congressional and state legislative maps adopted in Michigan in December 2021 for the 2022 elections by the newly created MICRC that was established after the adoption of Proposal 2 in 2018.
The maps adopted by the MICRC have NO Congressional majority-minority districts (ZERO) in a state that is roughly 15% African-American. There are NO state Senate majority-minority districts (ZERO) and only six state House majority-minority districts. Those maps stand in contrast to the 2011 redistricting plans adopted by the Legislature, which contained TWO majority-minority Congressional districts, FIVE state Senate majority-minority districts and 12 state House majority-minority districts. The maps in effect between 2002 and 2012 were similarly constructed.
New litigation in Michigan citing these two U.S. Supreme Court actions that affect Alabama and Louisiana may be inevitable.
Meanwhile, the MICRC says it will try to determine before its July 20 scheduled meeting whether one of its commissioners (ostensibly an independent) can continue to hold his seat while keeping a job with a nonprofit that helped pass another constitutional amendment (on abortion rights) last year. At the request of another commissioner, Rebecca Szetela, MICRC Chair Doug CLARK and Executive Director Edward WOODS III said the commission would discuss the legal ramifications of Commissioner Anthony EID taking a job with Michigan Voices, one of the groups behind the successful Reproduction for All campaign that passed, Proposition 3.
“We want to ensure we get the facts. We’ve started to do that, we’re not completed with that. We’ve got a number of facts and then we need to continue on with a few other people, which has been difficult because of the holiday week,” Clark told MIRS newsletter.
Any litigation stemming from the U.S. Supremes’ edict means that the MICRC may have more work to do. Already, there are two lawsuits pending in the U.S. 6th District Court of Appeals on the constitutionality of the MICRC’s state House and Senate maps. Now, there may be another one on the way that involves the Congressional map..
All this appears to be good news for each of the 13 Redistricting Commissioners — it would seem to justify that their approximately
$55,700 annualized salary (about 35% of the Governor’s pay) will continue on indefinitely. That’s because the MICRC is required to adopt any remedial plan resulting from a court order.
But what does pending litigation mean for the continuation of Commissioner Anthony Eid on the commission? Eid ‘s application to serve on the commission was randomly selected in 2020 to be one of five commissioners without political party affiliation.
Effective July 1 of this year, Eid was hired to be the Deputy Executive Director of the progressive advocacy group, Michigan Voices, which posted on its website the key role Michigan Voices and its allies played in lobbying the MICRC up till adoption of the final maps. The salary posted on the Michigan Voices website for the Deputy Executive Director position ranges from $95,000 to $110,000. Eid apparently plans to remain on the Redistricting Commission and continue to collect his $55,700 commissioner salary. Eid defiantly maintains there is nothing in the 2018 constitutional amendment that prevents him from being employed by Michigan Voices, which he labels as a nonpartisan, nonprofit community group.
Eid has not explained why Michigan Voices, which professes to have been so active with redistricting issues in 2021, has never registered or reported under the Michigan Lobby Law. If Eid had been employed by an advocacy lobbying group like Michigan Voices in 2020, most likely Eid’s application to be a Redistricting Commissioner would have been ineligible to advance to the random drawing stage, especially for someone professing to be an applicant without party affiliation. So why, in 2023, can Anthony Eid be employed by Michigan Voices and also serve as a commissioner without party affiliation on the MICRC?
It will be interesting to see whether the MICRC, at its July 20 meeting, will decide whether commissioner Eid’s employment with Michigan Voices constitutes a conflict of interest under the MICRC’s own adopted Code of Ethics.
The 2018 constitutional amendment requires a vote of 10 commissioners to remove a commissioner. If Eid survives a removal vote by his colleagues, could he still be removed by Governor Gretchen Whitmer under her Article V, Section 10, power to remove and replace state and local public officials?
Bob LaBrant, a retired attorney and election law expert, says that he has researched this question and found that, in 1926, Governor Alex Groesbeck removed State Superintendent of Public Instruction Thomas Johnson, then an elected state officer, and replaced him with one Wilford Coffey. Groesbeck removed Johnson because, in addition to being paid a state salary as State Superintendent, Johnson received additional compensation paid for out of federal funding to administer vocational education in Michigan (double dipping).
Could this serve as precedent for a gubernatorial removal of a double dipping Commissioner Eid?
No, says LaBrant. The MICRC established in Article IV, Section 6, of the constitution by the state’s voters, is clearly placed in the legislative branch. The Governor has no power under Article V, Section 10, to remove a member (elected or appointed) in the legislative or judicial branch of state government. The Governor certainly has no role in removing a redistricting commissioner, although some would argue that he or she should.
If the commission votes to remove Eid, Article IV, Section 6 (3), provides for a random draw by the Secretary of State taken from those remaining qualified applicants in either a Democratic, Republican or no party affiliation pool depending on the pool category of the Commissioner being replaced.