Look back to see the future.
No more “Apol standards.” Instead, in 2022 Michigan voters should expect to see a reprise of the old Austin-Kleiner and Hatcher-Kleiner Congressional and legislative redistricting plans of the 1960s and ’70s.
All or part of what is known as Proposal 2, a constitutional amendment approved by Michigan voters last Nov. 6, still must withstand ongoing legal challenges in federal court. Assuming it does, what will the maps produced by the new 13-member “independent” commission created by the initiative look like?
According to one national apportionment expert, the oddly configured Congressional and legislative “gerrymanders” drawn by Republicans in 2001 and 2011 that have been ridiculed by Democrats and redistricting “reformers” will be supplanted by maps that are even more grotesquely shaped and will sow confusion among local governments.
That’s what the commission is bound to produce if it follows the plain wording of Prop 2, says Rick Pildes, who is part of an online “symposium” on “Partisan Gerrymandering after Rucho” put together by Rick Hasen on his well-known “Election Law Blog.”
Pildes, a University of Michigan Law School graduate who once clerked for U.S. Supreme Court Justice Thurgood Marshall and is now a professor at New York University, was the only one of the 18 who focused on Michigan as one of four states that adopted ballot measures in 2018 to create Independent Redistricting Commissions (IRCs) “or other non-partisan processes to draw districts.”
Good fences makes good neighbors, so the Robert Frost poem goes. Borders, boundaries and city limits are legal fences, and most communities like them. But the Congressional and legislative district maps created for Michigan by the 1964 Austin-Kleiner and 1972 Hatcher-Kleiner reapportionment plans didn’t honor or respect local governments’ borders.
Indeed, those two plans, drafted by the Michigan Democratic Party and approved by a Democratic majority state Supreme Court, were attempts to conform at all costs to the edict of “one person, one vote” as defined by the U.S. high bench in two famous cases, Baker v. Carr (1962) and Reynolds v. Sims (1964). The plans “broke” hundreds of village, city, township and county lines in pursuit of the “one person, one vote” principle, producing consternation and anger throughout Michigan.
Hardy anyone nowadays seems to remember those times. Among those who do, few seem motivated to bring up the issue of shattered local boundaries.
It wasn’t until 1982, when the Michigan Supreme Court (still controlled by Democrats) appointed a special master, former state elections director Bernie Apol, to draw up new maps for the succeeding decade that Michigan got a different result.
Apol applied standards of compactness, contiguity and the breaking of as few local government lines as possible to come up with three maps. The Supreme Court upheld the Apol standards unanimously. The Apol standards were later codified by the Michigan Legislature in 1996.
Pildes entitles his article “What Do Voters Think Independent Redistricting Commissions Should Do?” Excerpted below is how he answers that question generally, and how he thinks two states, Utah and Michigan, will approach the implementation of their initiatives:
“Now that the Supreme Court’s decision means that limits on partisan gerrymandering will have to come from venues such as Independent Redistricting Commissions (IRC) created by voter initiatives in states that permit such initiatives, it is worth keeping in mind that merely moving districting to IRCs does not resolve the underlying substantive questions that must be confronted about what makes a districting system “fair” or appropriate. Indeed, in the four states that in 2o18 adopted ballot-measures to create IRCs or other non-partisan processes to draw districts, we actually see four different approaches.
“In light of Rucho, it’s worth paying more attention to the specific differences between how voter initiatives define the constraints and obligations of an IRC. I’ll summarize here the differences just in the four measures approved last year. Conceptually, the biggest difference is between what I call more “process-oriented” approaches and more “outcome-oriented” ones. The basic difference is between a focus on “fair criteria” that do not define those in terms of some measure of seats/votes outcomes, and ones that do. Here is a brief description of the differences in recent voter initiatives, from a piece I did on this for the Harvard Law Review blog (The Ballenger Report is exorcizing the states of Missouri and Colorado as largely irrelevant to Michigan’s situation):
“The Utah initiative appears to take a process-oriented approach, or perhaps to try to merge process and outcome approaches, but in a way likely to foster confusion. Thus, the commission is told that it must meet, to the greatest extent practical and in a specific order of priority, seven process-oriented criteria, which include the usual factors, along with ones such as “following natural and geographic features, boundaries, and barriers.” But then, after this specific list of rank-ordered priorities that must be followed to the greatest extent practical, the next provision tells the commission not to “divide districts in a manner that purposefully or unduly favors or disfavors … any political party.” Utah’s commission would be only advisory. The legislature can reject the commission’s map and enact its own plan. However, it would be bound by the same criteria as the commission and would have to issue a report explaining why its plan did better at satisfying these criteria.
“To tell the commission to follow process-based criteria and not engage in purposeful partisan gerrymandering is one thing. Both of those objectives can be accomplished together. But what does it mean to tell it both to follow these criteria and also not to “unduly favor or disfavor” a political party? The “unduly favor” standard sounds like an effects-based or outcomes-based measure that applies even if the commission acts without any partisan intent. So if the commission first follows all the process-based criteria, but the map that results would then favor one party or the other -– in terms of how many seats that party gets compared to its statewide vote -– what is the commission supposed to do? Sacrifice some of the process criteria? Or not pay attention to the outcomes after all? If the process-oriented criteria are supposed to have priority, how much room does that leave to adjust the map to avoid “unduly” favoring or disfavoring a political party?
“Michigan’s initiative, which applies to both Congress and state districts, is similar to Utah’s in trying to blend process and outcome criteria, but with a different set of priorities. Thus, Michigan’s proposal first requires compliance with federal law, contiguity, and then respect for communities of interest. But the next requirement, in order of priority, is that the “districts shall not provide a disproportionate advantage to any political party,” using “accepted measures of partisan fairness.” Only after that requirement is met is the commission then required to reflect pre-existing boundaries of towns, cities, and counties and to be reasonably compact.
“Because the commission’s plans cannot provide a disproportionate advantage to a party, this requirement goes beyond ensuring that the commission not act with partisan intent. The effects of its plan must still not advantage any party. In addition, since this requirement is given priority over drawing compact districts or keeping towns and the like together, the Michigan initiative might be read to require that districters use bizarrely shaped districts and break up towns, cities, and counties whenever necessary to ensure that the map produces fair partisan outcomes, in the sense that a party’s proportion of seats corresponds to its proportion of statewide votes …”
In sum, the takeaway from Pildes’s article is this: Michigan’s Apol standards have been knocked so far down the list of criteria that this state’s mapmakers must consider that it almost guarantees the days of Austin-Kleiner and Hatcher-Kleiner are here again.
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Below is a link to a meta-link page. Each link on the page goes to a different document (of a set of documents) detailing how gerrymandering can be literally eliminated from state and local governments. (Federal law does not allow the idea presented in those documents to be implemented for U.S. House seats.)
https://docs.google.com/document/d/1_YX8NaQa-0umW6cEhwMoReNNwyk9OQx9dngLwDLnJ80/edit?usp=sharing
Those days arrived 20 years ago, with computerized map drawing. That’s why districts already are cutting cities, counties, school districts and even manufactured home communities for partisan gain. Partisan gerrymandering isn’t about how a district looks. It’s about how politicians picked their voters to avoid accountability. To pretend otherwise is disingenuous.
Watching pundits defend our the old process is sad. Back room deals. In the dark of night. Resulting in one party getting 49 percent of the vote and 60 percent of the seats. Is that what we want? 61 percent of Michigan voters said no.
Ignored in the discussion of process orientation versus outcome orientation for Michigan’s redistricting commission is the factor of political cluelessness of the proposed members. The drafters of the ballot initiative were so hell-bent on political virginity for future members, that no one who ever served on a Republican township board in the UP, or whose sister was ever elected a Democratic precinct delegate in the urban area can be appointed. It is reasonable to guess that our new (and herself politically-motivated) Secretary of State is drooling at the opportunity to shape our legislative districts as the appointees watch with glazed eyes and an inability to stand up to an authority figure.
When partisan hands are drawing the districts, it is vital that they be subject to enforceable constraints to uphold the public interest. The Apol standards do provide some important constraints.
The Republicans who drew the state senate and state rep boundaries over the years have followed these rules, and I give them credit for that.
HOWEVER, the Legislature has NEVER followed the Apol standards with regard to Congressional districts! The convoluted boundaries and breaking up of counties and cities seen in the 2001 and 2011 congressional district plans would not have been allowed by the Apol rules.
Yes, the Legislature enacted the Apol standards into law in 1996. But in 2001, they ignored those rules in drawing Congressional districts, and the state supreme court ruled that the legislature couldn’t be bound by the actions of previous legislatures. So that law is already a dead letter.
The movement for an independent districting commission was inspired mainly by the state’s egregiously gerrymandered congressional districts. Had the Legislature applied the Apol standards, it wouldn’t have happened.
Politics was A Dirty Business before
Donald Trump .It has become with
A complicit GOP Worse as they
Look the other way to his incredible
Shameful Immoral unethical Impeachable Behavior .So I think
This mandate of the people with
It’s independence is Great to
Promote equal Protection of the Law!
Politics was A Dirty Business before
It has become with
A complicit GOP Worse as they
Look the other way to incredible
Shameful Immoral unethical Impeachable Behavior of The Emperor.,So I think
This mandate of the people with
It’s independence is Great to
Promote equal Protection of the Law!
J Dallas Winegarden:
If you ever want to humor yourself in these divided times, I encourage you to look up how Elbridge Gerry — the man from whom we get the term “gerrymandering” and who was Monroe’s VP — once divided Massachusetts into the most obtuse and salamander-shaped districts to help Jefferson’s Democratic-Republican party. It’s rather creative and ingenious — but nonetheless reveals that politics was hardly clean even back in the halcyon days of our esteemed Founding Fathers. In fact, the Adams-Jefferson election of 1800 makes the 2016 election look like the Boys’ Scouts audition.
Perhaps, if Republican legislatures had followed the spirit of the Apol principles instead of self-serving political principles, this whole exercise would have been unnecessary. When Michigan became one of the most gerrymandered and unfair states in the Union, the situation begged for thousands of volunteers to step forward to correct the situation. They devised the fairest, most impartial, non-partisan solution they could think of, after 30-some meetings with citizens all over the state.
Clever manipulations of arcane of legislative history, such as this Ballenger article, will not mask the fact that most Michigan citizens recognized something was wrong and acted to fix it.
IF this 13 member commission is ever able to schedule its first meeting, it will consist of Four Jackasses, Four R(h)ino’s and Three Jellyfish, all selected by a hyper-partisan behind-the-scenes group sitting in a smoke-filled room in the dark of night. It will be “non-partisan” in name only. The lines drawn will resemble the varicose veins on Hillary’s left leg and throw every village, city, and county clerk into convulsions. Miraculously, the results of future elections will phenomenally benefit Jackasses, with a few R(h)ino’s thrown in for good measure, just to keep up appearances.
That, of course, is IF the first meeting is ever held. Since the recent lawsuit commenced in Federal Court (1:19-cv-00614 W.D. Mich) is claiming that freedom of association and equal protection are put in jeopardy, the first meeting may never take place. And whoever fails to prevail at the U.S. District Court level will no doubt appeal to the Sixth Circuit. From there, it is a safe bet that loser will attempt to make a quantum leap to the U.S. Supreme Court.
Why would SCOTUS take this case? After all, they just decided redistricting cases from more than one state. Because the soon-to-be late notorious RBG will be replaced by Amy Coney Barrett, giving SCOTUS five sane minds for the first time in decades. Which means no more twisted decisions (e.g. paying a tax in lieu of Obamacare; disallowing a question on U.S. citizenship in the census as “adequate justification” was not forthcoming, etc.)
So perhaps the corner will turn to the right, and not a moment too soon. We will either be governed by the rule of law, where the rights of the individual standing alone as an individual are on an equal footing with individuals standing as a group, or we will continue veering leftward towards mob rule, where individual rights are non-existent.
> The lines drawn will resemble the varicose veins on Hillary’s left leg and throw every village, city, and county clerk into convulsions.
Ignoring your partisan bombast, you’re quite mistaken on this specific point.
If unsophisticated, ordinary citizens get to make decisions on the boundaries, one thing is VERY sure: they will privilege “aesthetic” considerations above all others.
After all, they went down to Lansing to slay the rampant gerrymonster, no? They won’t be able to face their neighbors back in Ludington or Saginaw or Royal Oak if they approve anything ugly-looking.
What the public wants is a simple map with straight lines. This commission, if allowed to act, will give it to them. The districts they draw will be VERY square and compact. Neither party is likely to be pleased.
But that is a big IF, Larry!! Since the poo-bahs will be picking the people to be placed on this committee, it is highly doubtful that they will end up being “unsophisticated, ordinary citizens”; anything but.
The only “simple map with straight lines” currently in existence is the 6th congressional district, which is “square and compact”.
Too bad the rest of the state isn’t as close to that standard as possible!!
Multiple lawsuits by the Republican Party to prevent the voter approved initiative from going into effect are not surprising. They fear a loss of power if there is a level playing field. The will of the people be damned.
I look forward to a citizen panel drawing up FAIR maps. There will be numerous opportunities for the public to weigh in. It will be a welcome change that is long past due.
If municipal and county boundaries were followed after the 1982 changes, codified in 1996, I am puzzled why my state rep district in 1998 consisted of part of Royal Oak, part of Troy, and all of Clawson.